IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 

111.1 

i    la  Ki  12.2 

a?  lia  12.0 

11= — 

|25 

Sdenoes 
Corporalion 


23  WIST  MAIN  STRHT 

WIISTII,N.Y.  14SM 

(71«)t73-4S03 


4^    A  \  ^r\\ 


^  *^% 


4^' 


^\ 


> 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiquos 


Technical  and  Bibliographic  Notes/Notes  techniquas  at  bibiiographiquas 


Tha  Inatituta  haa  attamptad  to  obtain  tha  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographically  unlqua, 
which  may  altar  any  of  tha  imagaa  in  tha 
reproduction,  or  which  may  aignificantiy  change 
tha  uaual  method  of  filming,  are  checked  below. 


D 


Coloured  covera/ 
Couvarture  da  couleur 


r~1    Covera  damaged/ 


D 


Couverture  endommagte 

Covera  reatorad  and/or  laminatod/ 
Couverture  reataurte  et/ou  pelliculte 


I     I   Cover  title  misaing/ 


titre  de  couverture  manque 

loured  mapa/ 
Cartea  gtographiquaa  en  couleur 

Coloured  inic  (i.e.  other  than  blue 

Encre  de  couleur  (i.e.  autre  quc>  bleue  ou  noire) 


I     I    Coloured  mapa/ 

I     I    Coloured  inic  (i.e.  other  than  blue  or  black)/ 


r~~|   Coloured  piatea  and/or  illuatrationa/ 


0 


Planchea  et/ou  illuatrationa  en  couleur 


Bound  with  other  material/ 
RellA  avac  d'autrea  documenta 


D 


D 


Tight  binding  may  cauae  ahadowa  or  diatortion 
along  interior  margin/ 

La  re  liure  aarr^e  paut  cauaar  de  I'ombre  ou  de  la 
diatortion  la  long  de  la  marge  IntArieure 

Blank  leavea  added  during  roatoration  may 
appear  within  the  text.  Whenever  poaaibla,  theae 
have  been  omitted  from  filming/ 
II  ae  paut  que  certainaa  pagea  blanchea  ajouttea 
lore  d'une  reatauration  apparaiaaant  dana  la  taxte, 
mala,  loraqua  cela  Atait  poaaibla,  caa  pagea  n'ont 
pea  At*  filmtea. 

Additional  commanta:/ 
Commantairea  aupplAmentairea: 


L'Inatitut  a  microfilm*  la  meilleur  exemplaira 
qu'il  lui  a  *t*  poaaibla  de  ae  procurer.  Lea  ddtaila 
da  cat  exemplaira  qui  aont  paut-Atre  uniquaa  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dana  la  mAthoda  normala  de  filmage 
aont  indiquto  ci-daaaoua. 


I     I  Coloured  pagea/ 


Pagea  de  couleur 

Pagea  damaged/ 
Pagea  andommagtea 

Pagea  reatorad  and/oi 

Pagea  reataur^aa  et/ou  pellicultea 

Pagea  diacoloured,  atained  or  foxa« 
Pagea  dteolortea,  tachettea  ou  piquAea 

Pagea  detached/ 
Pagea  d^tachtea 

Showthroughy 
Tran&parence 

Quality  of  prir 

Quality  in^gaia  de  I'impreaaion 

includea  auppiamentary  materii 
Comprend  du  matAriai  auppKmentaire 


Til 
to 


r~~|   Pagea  damaged/ 

I     I   Pagea  reatorad  and/or  laminated/ 

I     I   Pagea  diacoloured,  atained  or  foxed/ 

I     I    Pagea  detached/ 

r^  Showthrough/ 

nn    Quality  of  print  variea/ 

□   includea  auppiamentary  material/ 
Coi 


T^ 
po 
of 
fil 


Oi 
be 
th 
8i< 
ot 
fir 

Sl( 

or 


Til 

sh 
Tl 

wl 

M 
dil 
en 
be 
rlj 
re( 
m( 


D 
D 


Only  edition  available/ 
Seule  Edition  diaponible 

Pagea  wholly  or  partially  obacured  by  errata 
aiipa,  tiaauea,  etc.,  have  been  refilmed  to 
enaura  the  beat  poaaibla  image/ 
Lea  pagea  totalement  ou  partiailement 
obacurciaa  par  un  feuillet  d'errata,  une  pelure. 
etc.,  ont  M  filmtoa  A  nouveau  de  fa^on  A 
obtenir  la  meilleure  image  poaaibla. 


Thia  item  la  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  eat  film*  au  taux  de  rMuction  indlqu*  ci-deaaoua. 

10X  14X  18X  22X 


26X 


XX 


/ 


i2>: 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'examplaira  filmi  fut  reprodutt  grica  A  la 
gAnArosIt*  da: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^-  (meanir  g  "CON- 
TINUED"), or  the  symbol  V  (meaning  "END"), 
whichever  applies. 


Les  Images  suivantes  ont  4tA  reproduites  avac  la 
plus  grand  soln,  compte  tenu  de  la  condition  at 
de  le  nettetA  de  I'exemplalra  film*,  et  en 
conformity  avec  les  conditions  du  contrat  da 
filmage. 

Les  exemplaires  orlginaux  dont  la  couverture  en 
papier  est  imprimte  sont  filmte  en  commenpant 
par  le  premier  plat  et  en  terminant  solt  par  la 
dernlAre  page  qui  comporte  una  empreinte 
d'impresslon  ou  d'iilustration,  soit  par  le  second 
plat,  salon  la  cas.  Tous  les  autres  exemplaires 
orlginaux  sont  filmte  en  commenpant  par  la 
pramiire  page  qui  comporte  une  empreinte 
d'impresslon  ou  d'iilustration  et  en  terminant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 

Un  das  symboles  suivants  apparaftra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  9e  symbols  — »•  signifle  "A  SUIVRE",  le 
symbols  ▼  signifle  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  retios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planchaa,  tableaux,  etc..  peuvent  Atre 
fllmte  A  des  taux  de  reduction  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atre 
reproduit  en  un  seul  clichA.  il  est  film*  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  h  droite, 
et  de  haut  en  bas.  en  prenant  le  nombre 
d'images  nteessaire.  Les  diagrammes  suivants 
illustrent  la  mtthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

L 


H 


^ 


OU-t>^ 


THf  PROPERIYOF 
HtLAWSOCi'r' 


AMERICAN 


CRIMINAL  REPOETS. 


! 


ft 


A  8EBIES  DESIGNED  TO  CONTAIN  THE  lATEST 
AND  MOST  IMPORTANT 

CRIMINAL  CASES 


DETERMINED  IN 


THE  FEDERAL  AND  STATE  COURTS  IN  THE  UNITED  STATES, 


AB  WELL  A8 


SELECTED    CASES, 

IMPOBTANT  TO  AmEBICAS  LAWrEBg, 


3 


FROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN 
LAW  REPORTS, 


WITB 


NOTES  AND  REFERENCES. 

/ 

BY 

JOHN  GIBBONS,  LL.D., 

Or  THE  Chicago  Bab. 


VOL.  IX. 


CHICAGO: 
CALLAGHAN  AND  COMPANY, 
Law  Book  Pcbushers. 
1896. 


r»  jr    ':■ 


Copyright,  1896, 

BT 

CALLAGHAN  AND  COMPANY. 

JUN  6  - 1947 


I 


THE  CHICAGO  hEQKh  NEWS  COMPANY, 

PBINTEBS  and  STEBEOTYPEBg, 
CIIICAUO,  ILLS, 


TABLE  OF  OASES  REPORTED. 


PAGE 

Anderson  v.  Pierce  Count}' 578 

Arp  V.  State 517 

Arthur  et  al.  v.  Oakes  et  al 169 

B 

Baker  v.  Commonwealth 614 

Baker  v.  State 455 

Bannon    and    Mulkey  v.  United 

States 338 

Beard  Babe  v.  United  States. ...  324 

Bernekerv.  State 460 

Blackwell  v.  State 582 

Bradshavv  v.  People 23 

Buchanan,  In  re 494 

Buskett,  Ex  partj 754 

c 

Carltf)n  v.  Peoi)le 62 

Carr  V.  State 80 

Clark  V.  State  ex  rel.  Carey 117 

Commonvv«'alth  v.  Ham 1 

Commonwealth  v.  Hayden 408 

Commonwealth  v.  Linn  et  al .  . .  412 

Com.  V.  Lehigh  Valley  R.  Co 370 

Crawford  v.  State 587 

D 

Dealy  v.  United    States 161 

Dickson  v.  State 656 


E 


Edelhoff  V.  State 

Evana  v.  United  StatLv- 


256 

608 


Foss,  Ex  parte 803 

French  v.  State 348 

Fulcher  v.  State 734 


G 

PAGE 

Gordon  v.  State 444 

Grant  v.  State 746 

Hathcock  v.  State 705 

Henderson  v.  James 711 

Higgins  V.  Commonwealth 20 

Hudson  V.  Parker. .     91 


K 


297 


Kirby  et  al.  v.  State 

L 

Lambright  ot  al.  v.  Stat- 388 

Linden  Park  Blood- Horse  Ass'n 
V.  StJite 235 

M 

Murphy,  In  re 122 

N 

Norton  v.  State 606 


People  V.  Beevers 139 

People  V.  Burridge 70 

People  V.  Clark 596 

People  ex  rel.  Forsyth  v.  Court  of 
Sessions  of  Monroe  Couny...  439 

People  V.  Gardner 82 

People  V.  Hodgkin 658 

People  V.  Johnson 377 

People  V.  Murray 719 

It 

Robertson  v.  People 284 

Robinson  v.  State 570 


(iii) 


IV 


AMERICAN  CRIMINAL  REPORTS. 


\  I 


s 

PAGE 

Shields  V.  State 149 

Smith  V.  State 320 

Snowden  v.  United  States 449 

State  V.  Bowkcr 305 

State  V.  Brown 310 

State  V.  Burpee  536 

State  V.  Butler 661 

State  V.  Cassidy 563 

State  V.  Crocker 468 

State  V.  Fitzsimon 343 

State  V.  Harrison 626 

State  V.  Hermann  et  al 313 

State  V.  Hudson 742 

State  V.  Hunt 426 

State  V.  Johnson 145 

State  V.  Johnson 7 

State  V,  Kelley,  James  H 354 

State  V.  Knight  et  al 221 

State  V.  Lewis 49 

State  V.  Lockerby 617 

State  V.  Morrow 28 

State  V.  Myers 108 

State  V.  Oden 295 

State  V.  O'Rourk  et  al 689 

State  V.  Perley  et  al 504 


PAGE 

State  V.  Preston 735 

State  V.  Spears 622 

State  V.  Stice 363 

State  V.  Trolson 243 

State  V.  White  et  al 73 

State  ex  rel.  O'Connor  v.  Wolfer.  487 

Stokes  et  al.  v.  United  States 436 

Stout  V.  State ,  398 

T 

The  Queen  v.  Baker 421 

The  Queen  v.  Instan 416 

The  Queen  v.  Russett 51 1 

The  Queen  v.  Silverlock 276 

The  Queen  v.  Tankard 239 

The  Queen  v.  Thompson 269 

Thomas  v.  State 158 

Thompson  et  al.  v.  State 199 

Thompson  v.  United  States 209 

Townsend  v.  State 299 

w 

Walsh,  In  re 651 

Warner  v.  State 526 

Webb,  In  re 702 


PAGE 

735 

622 

363 

243 

73 

-Volfer.  487 
ites....  436 
,  398 

421 

416 

an 

276 

239 

26» 

158 

190 

es 209 

299 

651 

526 

702 


TABLE  OF  CASES  CITED. 


PAGE 
Ackerson  v.  People,  124  111.  563.  66 
Adams  v.  Jones.  12  Pet.  207. . . .  475 

V.  Lee.  82  Ind.  587 428 

V.  State,  34  Fia.  185;   15 

South 390 

Adams  v.  State.  29  Ohio  St.  412  556 
Anuierre  v.  State,  31  Tex.  Cr.  Rep. 

519 425 

Aickles  Case,  1   Leach  Cr.  Caa. 

390 490 

Aiken  v.  Kennison,  58  Vt.  665. . .  537 
Alexander  v.  State.  28  Tex.  App. 

186 302 

Alford  V.  State,  8  Tex.  App.  545, 

562 •••••     61 

Alaerion  Sydney's  Case,  3  Harg. 

St.  Ti-.  818 548 

Alston  V.  State,  63  Ala.  178 66 

Alien  V.  Dayis.  101  Ind.  187 435 

V.  Leonard,  28  Iowa,  529; 

Code  Iowa,  1860,  s^  4535 62 

Allen  V  State  (Tenn.),  M.  &T.  294  504 

V.  State,  52  Ala.  391 328 

Allison  V.  Com.,  83  Ky.  254;   7 

Am.  Cr.  Rep.  301 408 

Almy  V.  Church,  Index  L.  L.  170    74 
American  Fur  Co.  v.  U.  S. ,  3  Pet. 

358 342 

Anderson  v.  Ackerman,  88  Ind. 

481 

Anderson  v.  f^^ate,  3  Pin.  367. 

V.  St.ite,  24  Fla.  139. 

Andrew  v.  State,  5  Iowa  389. . 

Andrews  y.  State,  2  Sneed  550. 


125. 
Cr. 


Association  V.  Delano,  37  Mo. 

284 

Attelierry  v.  State,  25  S.  W. 
Augustine  y.  State,  32  Tex 

App 

Austin  V.  People,  102  111.  261 .. . 
Ayant  v.  StaUs  25  S.  W.  1073. . 

B 


PAGE 
\pp. 


700 

82 

486 

27 

156 


6 


428 
349 
391 

24 
349 
353 

27 
352 


Angelo  V.  People,  96  111.  209. 
Argent  v.  Darrell,  2  Salk.  648 
Arnold  V.  Ctmi.,  80  Ky.  300  . . .  236 
Armstrong  v.  Noble,  55  Vt.  428. .  537 
V.  People,  70  N.  Y.  38  617 
V.    State     (Tex.    Cr. 

App.),30S.  W.  235 604 

Arthur  V.  Craig,  48  Iowa  264.  .489, 493 
Ashworth    v.    State    (Tex.    Cr. 

App.),  20  S.  W.  982 603 


Babcock  v.  Booth.  2  Hill.  181 ... . 
Bagg  V.  City  of  Detroit,  5  Mich. 

66 473 

Baily  V,  Wiggins.  5  Har.  (Del.) 

462 62 

Bain.  Ex  parte,  121  U.  S 439 

Bainbridgev.  State.  30  Ohio  St. 

264... 265 

Baird  v.  Boehner.  72  Iowa.  318. .  611 
Baker  v.  City  of  Washington.  7 

D.  C.  134 580 

Baker  y.  Com.  (Ky.),   19  S.  W. 

975 336 

Baker  v.  State,  65  Wis.  .50 119 

V.  State,  54  Wis.  368 292 

y.  State,  11  Tex.  App.  262  713 

Ball  V.  U.  S.,  140  U.  S.  118 353 

Ballard  y .  State,  43  Ohio  St.  340 . .  53 
Banks  y.  Aulls'  Adm'r,  80  Mo.  199  319 
Bank  y.  Halsted,  10  Wheat.  51 . .  95 
y.  Knoup,  6  Ohio  St.  343. .  503 
Bank  of  U.  S.  v.  Dunn,  6  Pet.  51  675 

Bank  y.  Owens,  2  Pet.  527 475 

V.  Wulfekuhler.  19  Kan.  60  116 

Barrett  v.  State,  1  Wis.  156 349 

Barker  y.  Benninger,  14  N.  Y. 

270 566 

Barker  y.  Com.,  19  Pa.  St.  412. .  415 
Barkhamstead    v.     Parsons,     3 

Conn.  1 .^ 47 

Bartley  v.  State,  ifl  Ind.  3.58;  12 

N.  E.  503 427 

Barton  v.  Holmes,  16  Iowa,  253.     658 

V.  State,  18  Ohio,  221...  362 

Barada  v.  State,  13  Mo.  94 73 


(V) 


vi 


AMERICAN  CRIMINAL  REPORTS. 


I 


PAGE 

HatcheUU'r  v.  Mo., re.  42  Cal.  413.  223 
V.  M.)..ri'.42  Cal.  412.  232 

Batre  v.  State.  1H  Ala.  Ill* ri.lfi 

Batsc'oniba"  Case,  3  Mud.  205 533 

liuvncs  V.  Rrcwstor,   2  Adol.  & 

E.  (N.  S.^375 52 

B«'a(>h  V.  State.  32  Tex.  Cr.  Rej)..  436 

Heal  V.  Statt    72  (ia.  2(H> 520 

H(  an  V.  Loft,    .  48  Wis.  371 505 

Beanlon   v.  State,   44    Ark.  331. 

349,  3.")3,  457 

B.jwlev  V.  .State.  .W  Ala.  20 709 

H^ck  I'V  V.  Jaivis.  55  Vt.  :M8. . . .  537 

Beekiiian  v.  LansinK.  450 500 

Beeis   V.  HauK'liton.  9  Pet.    329, 

300 05 

RejTKs  V-  State,  55  Ala.  108. . .  144,  412 

Bell  V.  Mahin,  09  Iowa,  408 3(il 

Belote  V.  State,  30  Miss.  90 148 

Beiuli  V.  State.  32  Te.\.  Cr.  Rep.  430 
Berpii,  £■.»•  jxirtc,  114  Tex.  App. 

52 000 

Berry's  Case,  27  Tex.  App.  4S4..  057 
Berry  y.  HaJiks.  28  111.  App.  55. .  0 
y.  State,  31  Ohio  .St.  227..  45S 
y.  State,  31  Ohio  .St.  225. .  202 
Bettsairs  Case,  11  W.  Va.  703. . .  032 
Bihl)    y.    State,    94    Ala.  31:  10 

South.  Rep.  .500 520 

Bigjis  y.  Lloyd.  70  Cal.  447 349 

Blackln.rn  v.  State.  23  Ohio.  140.  644 
Blaiii  y.  State  (Tex.  Cr.  Apj).),  31 

S.  W.  308 604 

Blair  y.  State,  81  Id,  631 709 

Blaker  y.  State,  130  Ind.  203. ...   148 

Blaiul  y.  State,  75  Ala..  574 323 

Blook  y.  State,  59  Wis.,  471. .. .  364 

Blooms"  Case,    53  Mich.  597 052 

Bloss  y.  Fohev.  12  Pick.  320,  325.  70 
Blossom  V.  Barret.  37  N.  Y.  434. .  434 
Bloimty.  State,  30  Fla.,  287;  11 

South  547 387 

Board  of  Coni'rs  of  Cook  Co.  y. 

Rollins  Inv.  Co.,  3  Wyo.  470. .  472 
Board    y.   Merchant,    103    N.  Y. 

148 293 

Board  y.  Wells,  07  Miss.  151  ....  .581 

Bohn  y.  People,  73  III.  488 653 

Bolis  y.  State,  8  Am.  Cr.  R.  126,  157 
Bona]inrti'  v.  Railroad  Co.,  Bald. 

205.  217,  Fed.  Cas.  No.  1617.. .  192 
Bonds  y.  State,  Mart.  &  Y.  142. .  633 
Booth  y.  State.  4  Tex.  App.  202.  .396 
Bf.ston,    C.   &    M.    Railroad   y. 

.State.  32  N.  H.  21.5,  231 373 

Bourne  v.  Rex,    7  Adol.  &  E.  .58    72 
Bowden  y.  Louis.  13  R.  I.  189. . .     70 
V.  Matheson,   14   Allen, 

499    19S 

Bowers  y.  State,  29  Ohio  St.  542.  Oil 
Boyce's  Exrs.  v.   Grundy,  3  Pet. 

210 ." 193 


PAOE 

Boyce  v.  People.  .55  N.  Y.  044.  .  .  615 
Bradford  City  y.  Downs,  120  Pa. 

St.  622 396 

Bradley  y.  State,  (Ala.),  15 .So.  040  511 
y.  State,  103  Ala.  15;  .So. 

Rep.  640:  1  Tayl.  Eyi.  i^S  ^^^'J. 

336 313 

Bradstreet,  E.r  jiartv,  4  Pet.  102.   102 

Brauer  y.  .State,  25  Wis.  413 447 

Brcssler  y.  Peoi)le,  117  III.  422. . .  67 
Brigliain  y.    Fayerweather,    140 

Ma.ss.   413 2 

Bnster  y.  State,  26  Ala.  107 152 

Brock  y.  State,  22  (Ja.  98 710 

Brockway  y.  Crawfoid,  3  Joni>a 

(N.C.),"433 .59 

Brooker  V.  Com.,  12  Serj;.   &  R. 

175 232 

Bro\yn  v.  Com.,  76  Pa.  St.  319. .  357 
y.  Com.,  4  Rjiwle.  2.59. . .  653 
V.  Com.,  78  Pa.  .St.  122..  644 

y.  Jones.  113  Ind.  46 ,503 

y.  Newall,  2  Mylne.  etc., 

5,58,  570 ' 192 

Brown  y.  Perkins.  12  (Jray  H9. . .  76 
V.  Stiite,  (Tex.  Cr.' App.), 

27S.  W.  187 412 

Brown  y.  State,  27  Tex.  Aiip.  330; 

H  Am.  Cr.  Rej).  077 448 

Brown  y.  State.  28  Arks.  126. . . .  605 
y.  State.  72  Md.  468....  14,  19 
y.  State,   18  Ohio  St.  496, 

496.  513 204 

Brownlield  v.  Insurance  Co.,  20 

Mo.  A|ii».  390 10 

Brundred  y.  Machine  Co.,  4  N.  J. 

E(i.  295 113 

Bryan  y.  Bates,  12  Allin  201 99 

Bryant's  Case,  34  Kan.  68 608 

Buchanan   y.  Milligan,  108  Ind. 

433:  9  N.  E.  Rej).  3S5 503 

Buntiehl  y.  The  People,  154  111. 

640 22 

Burns  v.  Erben,  40  N.  Y.  402. ...  60 
y.  Erhen,  40N.  Y.  463...  5S 

y.  State,  89  Ga.  .527 425 

Burrell  v.  State.  25  Neh.  .581 653 

Buster  v.  Holland,  27  W.  Va.  511.  632 
Butler  y.  Peoi)le,  2  Colo.  295.. 223,  229 
Bushell's   Case,    Vaughn    135,    5 

St.  Tr.  999 .546 

c 

Cabell,  Marshall  et  al.  v.  Arnold, 

86  Texas  (S.  C.)  102 ,56 

Cahill    V,    Peo|)le,   106    III.   621; 
Crock.  Sher.  49;   1  Chit.  Crim. 

Law 5S 

Caldwell  v.  Texas,  137  U.S.  692.  ,500 
Calkins  y.  State,  18  Ohio  St.  370.  200 
Callahan's  Case,  63  Ind.  199 608 


m 


l"KBK^"WraOH!« 


TABLE  OF  CASES  CITED. 


VU 


PAGE 

Cnllnn  v.  Wilson.  27  U.  S.  540, 

.>)-):  8  Sun.  Ct.  1301 18.") 

Cumpbt'll  V,  People.  100  111.  .'iC').  340 

V.  Statu,  10  Ala.  144..     73 

V.  State,  3.')  Ohio  St.  70.  20r» 

Cane  v.  State,  32  Tt-.x.  Cr.  K. . . .     49 

CUirnal  v.  iVople,  1  Parker  Cr.  R. 

202,  200 442 

Carnal  v.  People,  1  Parker  Cr.  R. 

302 501 

Carpenter  v.  Com.  93  Ky.  578.. .  10 
V.  Corinth,  58  Vt.  214.  538 
V.  FitzKfi'iiW.   121    U. 

S.  87 408 

( 'arpenti'r  v.  People,  8  Barh.  010.  550 
V.  People.  8  Barb.  003.     18 
(  arew  v.  Rutherfonl,  100  Miiss. 

1.  13 18 

Can-  V.  State,  5  Am.  Cr.  R.  438.  454 
Ciuse  V.  Case.  17  Cal.    598. .  .143,  412 
V.  Washburn,  3  Ohio  St.  99.  470 
Casov  V.  Tv[)ograpliifal  Union, 

45  Fed.  i:i5.." 183 

( !atlett  V.  Brodie,  9   Wheat.  553, 

.555 101 

Cawley  v.  State.  37  Ala.  152,  153.  345 
CluustauH-   V.  State,  83  Ala.  29;  3 

South  304 1.50 

Chess  V.  State.  1  Blaekf.  198. ...  127 

( •beviiev's  Case,  30  Ark.  75 008 

Classen's  Case.  140  U.  S.  200;  11 

Sup.  Ct.  735 90 

Claasen,  //(  re.  140  U.  S.  200.  208; 

11  Sup.  Ct.  735 105 

c:laasen  v.  U.  S.,  143  U.  S.  140, 

070,  677 
Clark  V.  Bragilon,  37  N.  H.  502, 

505 01 

Clark  V.  Ice  Co..  24  Mich.  .508. . .     77 
V.  State.  4  Humph.  254. .  349,  353 

V.  State,  80  Tenn.  511 85 

C:iare  v.  People.  9  Colo.  122 368 

Clements  v.  State,  84  Ga.  660:  8 

Am.  Cr.  Rej).  092 SI 3,  589,  .505 

Cline  V.  State.  43  Ohio  St.  334,  335.  534 
Clitforil  V.  Brandon,  2  Camp.  358.     54 

V.  State.  .56Ind.  245 708 

Clinton  V.  Englebrecht,  13  Wall. 

434 126 

Clough  V.  London  &  Great  West- 
ern R.  R.  Co.,  Law  Rep.  7,  ex. 

at  p.  34 .513 

Clove's  Case.  26  Tex.  App.  024. . .   536 
Coddv.  Cabe.  13  CoxCr.  Cas.  202.  r)74 
V.  Cabe,  1  Exch.  Div.  3.52. .     56 
Coeur  d'Alene  C.   &  M.   Co.  v. 

Miners'  Union,  51  Fed.  260, 267; 

3   Whart.    Cr.  Law  (8th  Ed.) 

t- 1337  ct  seq. ;  2  Archb.  Cr.  Pr.  & 

PI.    (Pom.    Ed.)  1830    note;  3 

Bish.  Cr.  Law,  g  189  et  seq. ...     87 
Cohens  v.  V  irginia,  6  Wheat.  204 .    99 


PAGE 

Cole's  Case,  40Tpx.  148 608 

Cole  V.  Ilindson,  0  Tenn.  R.  234. .     00 
Coleman  v.  State.  59 Miss.  184. ..  400 

Collins  V.  State.  31  Fla.  574 387 

Coiner  v.  Knowles,  17  Kan.  430.     .59 

Com.  V.  Andrews,  3  Mass.  1  •,»(;. . .  349 

V.  Anthes,5Grav.  195;  .556,  559 

V.  Bennett.  118  M    is.  451..  345 

V.  Bieglow,  8  Me  ;.  (Mass.) 

335 356 

Com.  V.  Bowden,  14  (iray.  10;{. .  148 
V.  Burke,  13  Allen."  183. . . .   509 

V.  Carey,  12  Cush.  2  !0 52 

V.  Cahill,  12  Allen  540 510 

V.  Carlisle,  Brigbtlv,  N.  P. 

36,  39.  40 ." 180 

Com.  V.  Carlisle,  Brightly,  N.  P. 

40 '. 195 

Com.  V.  Clmbbock,  1  Mass.  143..  67 
V.  Choate,    105  '.«ass.  451. . 

356,  357 
V.  Cliflford  (Kv.  Ajip.)  27  S, 

W.  Rep.  811 ". 355 

Com.  V,  Clillord,  8  Cush.  215. . . . 

215,  595 

V.  Cook,  12  Mete.  03 33 

V.  Cooi)er,  15  Mass.  187 449 

V.  Costley,     118     51  ass.    1; 
Whart.  Cr.  Ev.  (8th  Ed.)  21 ... .     69 
Com.  V.  Crotty,  10  Allen,  -103. . . .     01 
V.  Dana,    2  Mete.    (Mass.) 

329-337 152 

Com.  V.  Dean,  109  Mass.  349 449 

V.  Dohertv.  10  (  usli.  .52. . .  340 
V.  Dor.sey.  103  Mnss.  413. ..  529 
V.  Dowdican,     115     Mass. 

136 443 

Com.  V.  Drum,  19  Pick.  479 449 

V.  Eastman,  1  Cush.  189. ..  807 

V.  Eaton,  15  Piek.  '273 653 

V.  Eichelberger.  11!)  Penn. 

253;  7  Am.  Cr.  Kep.  324 517 

V.  Elwell,   2  Mete.  (Mass.) 

190 248 

Com.  V.  Felton,  101  Ma.ss.  204... .  129 
V.  Ferrigan.  44  I'a.  St.  386.  357 

V.  Field,  13  Mass.  321 573 

V.  Flagg,  135  Mass.  ,545 668 

V.  Foley,  99  Mass.  497 78 

V.  Fowler,  4  Call.  35 493 

V.  Fredericks,  1 19  Masf,.  199.  409 
V.  Fuller,  8  Mete.   (Mass,) 

313 129 

Com.  V.  Garth,  3  Leigh  701 556 

V.  Haggertv.  4  Brewst.  326  493 
V,  Harrington,  3  Piek.  26. .  665 
V.  Hunt,  4  Mete.    (Mass.), 

111,131 185 

Com.  V.  Jacobs,  9  Allen  274. .. .  85 
V.  Lambert,  13  All(^n  177.  364 
V.  Leonard,  146  Mass.  473.  467 


viii 


AMERICAN  CRIMINAL  REPORTS. 


FAOE 
Com.  V.  Littlejohn,  15  Mobs.  168. 

410,  412 
V.  Luberg,  04  Pa.  St.  85. . .  129 

V.  Malcohn,  101   Urns 407 

V.  Malony,  154  Mass.  205. .  442 
V.  MashJMetc.  (Miis8.)472.  411 
V.  Miustm,  105  Miws.  1«3...  459 
V.  McDonald,  5  Gush.  305. . 

8.5,  510 
V.  McHugh,  157  Mass.  457.  578 
V.  McLauglilin.  12Cu8h.612  345 
V.  JIfPike,  3  Cush.  181 ... .  4.52 
V.  McPike,  31  Cush.  181. .. .  395 

V.  Merrill.  8  Allen  .545 212 

V.  Merrill,  14  Gray  415 448 

V.  Miller,  107  Pa.  St.  270. .  348 
V.  Mohn,  52  Pn.  St.  243. .. .  415 


230. 


V.  Moore,  4  Am.  Cr.  Rep. 


284 
644 


Ck)m.  V.  Mo3ler.  4  Pa.  St.  264. .. . 
V.  Munson,  127  Muss,  459, 

470 411 

Com.  V.  Neal,  1  Lead.  Crim.Ca.s.. 

81,  91,  520 
V.  Norcross.  9  Mass.  492. . .  410 
V.  Odlin,  23  Pick.  275. . . .  607 
V.  Parker,  4  Allen  313....  364 
V.  Porter,  10  Mete.  (Mass.) 

263 555 

Com.  V.  Pray,  13  Pick.  3.59 507 

V.  Raymond,  97  Mass.  .569.  245 

V.  Rock.  10  Gray  4 5.56 

V.  Rogers,  7    Mete.  (Mass.) 

.500 642 

Com.  V.  Sankev,  22  Pa.  St.  390.  711 
V.  Sawtelle,  141  Mass.  140.  363 
V.  Shanks,  10  B.  Mon.  304.  73 
V.  Shepard,  1  Allen  581 ... .  263 
V.  Stebbins,  8  Gray  492. .. .  600 
V.  Thompson,  9  Gray  .08.  148 
Com.  V.  Thompson,    1  Va.   Cas. 

307 6.59 

Com.  V.    Thompson,     116  Mass. 

346 346 

Com.  V.  Tliomiley.  6  Allen  448. .  556 
V.  Turpin.  (Ky.)  32  S.  W. 

133 486 

Com.  V.  Van  Tuyl,  1  Mete.  (Ky.)  556 
V.  Walker  (Pa.  2  S.),  2  Pa. 

Dist.  R.  727 121 

V.  Wallace,   114   Pa.    St. 


52; 


708 


364 
60 


405 
Com.  V.  Warden,  128  Mass. 

35  Am.  Rep.  357 

Com.  V.  Webster,  5  Cush.  320. 
V.  Webster,  5  cush-  295. . 

376,  381 

V.  Wemtz.  161  Pa.  St.  591.  307 

V.  Whittaker.  131  Mass.  224.  618 

V.  Williard,  22  Pick.  476. . . 

664,668 


PAGE 

Com.  V.    Woodward,    157  Mass. 

516 409 

Connaghan  v.  People.  88  lb.  460.  68 
Connah  v.  Hale,  23  Wend.  46H. .  .567 
Conway  v.  Clinton,  1  Utali  215. .  605 
Cook  V.  Nethercote,  6  Car.  &  P. 

741 52 

Cook  V.  People,  2  Tliomp.  &  C. 

(N.  Y.)  404 621 

Cook  V.  People,  16  111.  534 231 

V.  State,  1-4  N.  J.  Law  843.  846 

Cooley  V.  State,  Id.  162 141 

Cooper  V.  People,  16  Colo.  337. . .  229 
Coote  V.  Lightworth,  Moore  457.  58 
Copperman  v.  People,  56  N.  Y. 

.'•>91 3.56 

Corey  v.  Corey,  Wyo.  210 472 

Cornelson  v.  Insurance  Co.,  7  La. 

Ann.  345 581 

Cornish  v.  Territory,  3  Wyo.  101.  261 
Cossart  v.  State,  14  Ark.  541 :  Ex 

parte  Robin.son,   19  Wall.  (U. 

S.)  505;  Ex  parte  Snutb,   28 

Ind.  47;  In  re  Moore,  63  N. 

C.397 223 

Cote  V.  Murphy,  1.59  Pa.  St.  420.  195 
Cothron  v.  State,  39  Miss.  541.. .  436 
Cottrell  V.  Nixon,  109  Ind.  378. .  503 
Coupey  V.  Henley,  2  Esp.  540. . .     52 

Cox  V.  People,  82  111.  191 667 

Coyle  V.  Com..  100  Pa.  St.  573. . .  649 
Coyles  V.  Hurtin,  10  Johns.  «5. .  572 
Crandall  v.  People.  2  Lans.  311..  618 

Crane,  Ex  parte,  5  Pet.  190 102 

Crawford  v.  State,  90  Ga.  701;  2 

Russ.  Crimes,  106,  107 313 

Credit  Co.  v.  Arkansas  Cent.  Ry. 

Co.,  128  U.  S.  258,  260 101 

Crook  V.  State  (Arks.),  27  S.  W. 

Rep.  229 348 

Crookham  v.   State,  5  W.   Va. 

510 396 

Groom  v.  State,  85  Ga.  718 573 

Crosland  v.  Shaw  (Pa.  Sup.),  12 

Atl.  849 78 

Cross  V.   State  (Ind.   Sup.),   bl 

N.  E.  473 368 

Crowley     v.     Com.,     11    Mctc. 

(Mass.)  575,  579 346 

Crow  V.  State,  24  Tex.  12 235 

Crump  V.  State,  23  Tex.  App.  016.  245 
Cundilf  V.  Com.,  86  Ky.  196 21 

D 

Dacey  v.  People,  116  111.  555 

641,646,661 

Dacy  V.  Turner,  1  Dall.  11 375 

Danforth  v.  State,  Id.  614 556 

Daniels  v.  Kyle,  1  Ga.  306 300 

Darley  v.  State,  92  Ala.  9 519 

Davenport  v.  Com.,  1  Leigli  588.  556 


■  ^"W— 


TABLE  OF  CASES  CITED. 


IX 


....  556 

....  300 

....  519 

588.  556 


PAGE 
Davidson  v.  Binninger,  14  N.  Y. 

270 507 

Davis  V,  Beason,  183  U.  S.  888.. .   187 

V.  Bi'uson,  8  Id.  89 144 

V.  Burgesa,  54  Mich.  514. .  77 
V.  Benson,  183  U.  S.  838; 

8  Am.  Cr.  Uep.  89 412 

Davia  v.  Jenkins,  11  Mees.  &  W. 

754;  Owynere  Shor.  99 58 

Davia  v.  People,  114  111.  86 67 

V.  State    (Tex.  Cr.   App.), 

26S.  W.  684 454 

Davia  v.  State,  17  Ala.  354 204 

V.  State,  38WiB.  487 353 

V.  State,  15  Ohio  72  . .  .349,  520 

V.  State,  31  Neb.  247 449 

V.  State,  25  Ohio  St.  309  . .  534 
V.  Walker,  7  W.  Va.  447. .  633 

Day  V.  Day,  4  Md.  263,  270 77 

Deacon  v.  Shreve,  23  N.  J.  Law 

176 631 

Dejarnettc  v.  Com.,  75  Va.  867. .  556 
Deniarest  v.  IlarinR.  6 Cow.  76. .  658 
Demi  v.  Itossler,  1  Pen.  and  W. 

224 875 

Den  V.  Johnson,  3  Harr.  87 6 

Denison  v.  State,  13  Ind.  510.. . .  883 
Dent  v.  West  Virginia,  129  U.  S. 

124 293 

Devere  v.  State,  5  Ohio  Cir.  Ct. 

R.  509 653 

Dill  V.  State,  25  Ala.  15 624 

Dillon  V.  Pejple,    1    Hun   670; 

Thom.  &  C.  303 148 

Dimes  v.  Petley,  15  Q.  B.  376. ...     76 

Dodge  v.  Martin,  4  McCrary,  404.  294 

v.  People,  4  Nebr.  330. ...  349 

Dolan's  Case,  101  Maaa.  219 719 

Donohoo  V.  State,  (Ark.),  27  S. 

W.  336 284 

Dorlands  v.  Pattersons,  28  Wend. 

424 658 

Dougherty  v.  Com.,  69  Pa.  St. 

286 849,  358 

Douglas  V.  Barber,  28  Atl.  R.  (R. 

L)805 58 

Douglass  V.  State,  8  Wis.  820. .  349,  553 
Dovaline  v.  State,  14  Tex.  App. 

324 302 

Dow  V.  Johnson,  100  U.  S.  158- 

163 475 

Downey  v.  Farmer  &  M.  Bank 

of  Greencastle,  13  Serg.  &  R. 

288 371 

Drake   v.    State,   14    Neb.    535 

Wood,  Nuis.  40 239 

Drennan  v.  People,  10  Wrh.  169..  574 
Duflfy  V.  People,  26  N.  Y.  588. .  556 
Dunstnn  v.    Paterson,   2  C.  B. 

(N.   S.)495 58 

Dyson  v.  State,  26  Miss.  362.  .349,  353 
Dyson  Ex  parte,  25  Miss.  356-359..  108 


E 

PAGE 

Eanes  v.  State,  6  Humph.  53. . . .    59 

Earl  V.  People,  78  111.  339 69 

Ebersole  v.  Com.  iKv.),  26  S.  W. 

817 ; 336 

Edmondson  v.  Wallace,  30  Oa. 

660 353 

Edwards  V.  State,  27  Fla  163....  889 
Edwards,  In  re,  43  N.J.  Law  555.  718 
Eikenburry  v.  Edwards,  07  Iowa 

619;  Rap.  Contempt,  ,^  112;  3 

Amer.  &  Eng.  Enc,  Law  719. .  235 
Eilenbecker    v.    Plymouth    Co. 

Dist.  Ct,.  I34U.  5i.  31 235 

Eldridge  v.  State,  87  Ohio  St.  199.  658 

Pliot  v.  Eliot,  77  Wis.  043 144 

V.  Himrod,  108  Pa.  St.  569, 

573 105 

Elliott  v.  Benedict,  18  R.  I.  463, 

467 347 

Elliott  v.  People,  13  Mich.  365. . .    72 

Emack  v.  Kane,  34  Fed.  46 183 

Erwin  v.  State,  2  Am.  Cr.  Rep. 

251 237 

Erwin  v.  State,  29  Ohio  St.  186, 

193,  199 338 

Evans  v.  Evans.  93  Kv.  510 7 

v.U.  S.,  153  U.  &.  584,  594.  342 
V.  Waite,  83  Wis.  286  ... .  156 

F 

Fahnestock    v.  State,   102  Ind. 

156 23 

Fanning  v.   State,  66  Ga.  107;  4 

Am.  Cr.  Rep.  561 313 

Farrer  v.   Close.  94  Ala.  93;  10 

South.  553 150 

Farris  v.  State,  54  Ark.  4 456 

Ferguson's  Case,  71  Miss.  805.608,  613 
Ferguson  v.  State,  71  Miss.  805. .  606 
Fields  v.  State,  53  Ala.  351.  .518,  .524 
V.  State  (Ind.  Sup.),  33  N. 

E.  780 336 

Filer  v .  Smith,  96  Mich.  347 60 

Finch  V.  Crocken.  2  Comp.  M.  & 

R.  196;  1  Gale  130,  and  3  Dowl. 

678 60 

Fiott  V.  Com.,  13  Grat.  576 631 

Fischer  v.  Hayes,  6  Fed.  Rep.  63.  226 
Fishburn  v.  Railway  Co.,  137  U. 

S.  60;  11  Sup.  Ct.  8 95 

Fisher  v.  Hayes,  6  Fed.  Rep.  71 . .  710 
Fitzpatrick  v.  People,  98  111.  269 

658,  713 
Flanagan  v.  People,  52  N.  Y.  467  638 
Flannigan  v.  State,  46  Ala.  703. .  324 
Fleetwood  v.  Com.,  80  Ky.  1. . . .  578 
Fleming  v.  State,  29  Ind.  184. . .  517 
Flovell's  Case,  8  Watts  &  S.  197.  493 
Formwalt  v.  Hylton,  66  Tex.  228; 

1  S.  W.  376 61 


w 


/" 


t 


11  i! 
i   1 

1  ■' 

ii  , 

1   'i 

1 


/' 


/ 


y 


X 


AMERICAN  CRIMINAL  REPORTS. 


PAOF, 

Foster  V.  Kansas.  112  U.  S.  201 . .  101 

'  Fowler  v.  Stiiti-,  5  Day,  8J 

Fox  V.  Oliio.  5  How.  410. 

Franklin  v.  U.  S.,  1  Colo.  3;j.  . . . 

Freeman  v.  Peoiile,  4  Dcnio  9 . .  • 

633,  038 

Fry,  III  re,  3  Jfaclcoy.  135 

Fulclier  v.  State,  '28  Tex.  .\pii.405 . 
Fuze  V.  Spaunhorst,  07  Mo.  250. . 


364 
127 
134 

643 
053 
390 
700 


G 

Galvin  V.  State.  6  C;ol("i.  283 77 

(ialliard  v.  Laxton.  9  Cox  Crim. 

Cas.  127 56 

GallaKlu'r  v.  State,  3  Minn.  270, 

273  (Gil.  185) 336 

Gallasher  v.  State  (Tex.Cr.  App.); 

SOS.  \V.  5.57 511 

Gandv  V.  State.  13  Neb.  445  .  .232,  235 
Gannim  v.   People,    127  111.  507 

Whart.Cr.  Ev.  (8th  EiD.Par.  10    69 

Garcia  v.  Sti.te.  20  Tex.  209 148 

(Jarrity  v.  Veople.  107  111.  102. . .  Of. 
Garlaiiil.  Ex  i>aiii\  3  Wall.  333. .  443 
Garthwaite  v.Tattiin.  21  Ark.  336.  352 
Genario  Serio  v.  State,  23  Tex. 

Add.  03! 448 

Gibson  V.  State.  89  Ala.  126 518 

'  Hlbert  V.  State.  05  Ga.  449 340 

Gililcrsleeve  v.  Caraway,  10  Ala. 

360 204 

Ginilrat  v.  People,   138  111.  103; 

27  N.  E.  1085 152 

Glover  v.  State.  20  S.  W.  204. ...  651 
Goersen  v.  (Commonwealth,  100 

Pa.   St.  477:    12  Am.  &  Eng. 

Eneyel.  L.  371 400 

Goersen   v.   Commonwealth.   99 

Pa.  St.  388:  100  Pa.  St.  477. . .  3.57 

Goff  V.  Prime,  20  Ind.  190 318 

Goins  V.  State.  8  Am.  Cr.  R.  19.  49 
(}olden  V.  State.  22  Tex.  App.  2.  245 
Goodwine    v.  State,  5  Ind.  App. 

63 120 

Gore  V.  State.  52  Ark.  285 457 

Gormine  v.  State.  101  Ind.  144. .  302 
(Jourke  v.  United  States,  153  U. 

S.  183 216 

Graham  v.  Com.,  101  Pa.  St.  380.  391 
V.  Hartnett,10Neb.518.  460 
Graeton  v.  State,  105  Ind.  271 . . .  239 
Grandison  v.  State,  29  Tex.  App. 

186 436 

Grant's  Case.  4  Parker  C  :• .  R.  528 .  607 
Grant  v.  Moser,  5  Mass.  &  G.  1 23 .  52 
Gravatt  v.  State,  25  Ohio  St.  162.  264 
Graves  v.  Caldwell,  90  111.  612. . .  26 
V.  People,  18  Colo.   170; 

32Pac.  03 368 

Green's  Case.  22  W.  Va.  802. .. .  631 
Green  v.  Burke,  23  Wend.  49. . .  506 


PAGE 

Green,  In  re,  52  Fed.  R.  104. ...  670 

V.  State. 00  Alii.  40... 404,  407 

Greenfield  v.  Peoj.le.  85  N.  Y.  75 .     67 

v.People,  74N.Y.277.  352 

Greenville  v.  College  of  Phj'si- 

cians,  12  Mod.  386 58 

Grendon  v.  Bishop  of  Lincoln, 

Plow.  493 548 

Grisham  v.  State,  2  Yerg.  .589. . .  364 
Grisvold  v.  Sedgwick,   6   Cow. 

456;  1  Wend.  130 61 

Griswold  v.  State.  24  Wi.^.  145. . .   349 

Griffin  v.  State,  20  Ga.  4i)3 668 

Griffith  V.  McCullum,  4()  Barb. 

.501 70 

Guagando  v.  State.  41  Tex.  026..  GiM 
Guardians  of  the  Poor  v.  Greene, 

5  Binn  554 375 

Guernsey  v.  Loveli,  9  Wnid.  319  61 
Guiteau's  Csuse,  10  Fed.  Rep.  195.  642 

II 

Hadden  v.  The  Collector.  5  Wall. 

107,  111 105 

Ilagan  v.  State.  10  Ohio  St.  459.   318 

Haley  v.  .State.  49  Ark.  151 595 

Hallv.  State,  100  Ala.  S(i 7 

V.  State,  132  Ind.  317.... 81,  397 

V.  State,  48  Ga.  607 396 

Halleek  v.  (State,  05  Wis.  147. . .  357 
Halsted  v.  State,41  N.  J.  Law  589 .  249 
Hamilton  v.People,  29 Mich.  173. 

556,  558 
V.  Reg.,  9  0.  B.  271...  382 
V.  State,  36  Ind.  280.. 85,  86 
V.  Smith,  30  Mich.  222, 

227 00 

Hammill  v.  State.  90  Ala.  577. . .  519 
Hannah  v.  State,  43  Ohi(  i  St.  376.  596 
Hannahan  v.  State,  7  Tex.  App. 

664 713 

Hansen  v.  State.  43  Ohio  St.  376; 

5  Am.  Cr.  L'ep.  675 813 

Hansontlnck's  Case,  85  Va.  702. .  017 
Hardman  v.  Anderson,  4  How. 

640 95 

Hardy  v.  State.  7  Mo.  607 5.56 

Harlan    v.      People,     1     Doug. 

(Mich.)  207 127 

Harnianv.  Com.,  12  Scrg.  &  R. 

69,70 344,  345 

Harman  v.  Harman,  16  111.  85. .  412 

Hart  v.  Robinet,  5  Mo.  11 235 

Hastings  &  Dakota  Railroad  v. 

Whitney,  132  U.  S.  357,  303. . .  166 
Hathaway  v.  State,  32  Fla.  56. . .  651 
Havely  v.  Lowry,  30  111.  446. .. .  566 
Hawkins  v.  State,  125  Ind.  579. .  .503 
Hawley  V.  Bennett,  4  Paige  163.  231 
Hayes  v.  Fischer,  102  U.  S.  121..  220 
V.  People,  25  N.  Y.  300. . .  143 


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Hayes  v.  State,  58  Ga.  46 591 

Hnygood  v.  State.  99  Ala.  01 ... .  17 
Haynea  v.  State.  13  Ga.  465.  483.  330 
Hays  V.  Creary,  00  Texas  445.  .59,  61 
V.  People,  25  N.  Y,  390. . .  412 
V.  Stewart,  8  Tex.  358. .. .  290 
Heath  v.  Com. ,  1  llob.  (Va.)  735 . .  357 

V.  State,  Id.  089. 155 

Heilman  v.  Com.,  84  Ky.  457. . .  445 
Heldt  V.  State,  20  Neb.  492,  30  N. 

W.  620 153 

Hemmakor  v.  State,  12  Mo.  453. .  407 
Henderson  v.  People,  124  111.  607  17 
Hendricks  v.  State,  26  Tex.  App. 

179 862 

Henwood  v.  ( :;om. ,  52  Pa.  St. 424. .  345 

Hewitt's  Case,  17  Grat 632 

Heymann  v.  Keg.,  8  L.  R.,  Q.  B. 

102 282 

Hiatt  V.  Kinkaid,  40  Nebr.  178. .  461 
Hibbard  v.  Smitli,  50  Cal.  511 .. .  565 
Hibbs,£'.cj)((»-ff,20  Fed.  Rep.  421;  653 
Hight  V.  U.  S.,  1  Morr.  (Iowa) 

410 481 

Hile  V.  People,   156  111.   511;    2 

Whart.  Crim.  Law  (9th  Ed.) 

Sec.  16C0;  1  Greenleaf  on  Evi- 
dence (9th  Ed.)  Sec.  49 412 

HiU  V.  People,  16  Mich.  351 726 

V.  State,  17  Wis.  675 349 

V.  State,  63Ga.  578 158 

V.  State,  42  Nebr.  503 511 

Hill's  Case,  I  East  P.  C.  439 659 

Hilton  V.  Eokersley,  6  El.  &  Bl. 

47,  60 1)2 

Hinkle  v.  Com.,  4  Dana  518 053 

Hobbs  V.   Branscomb,   3  Camp. 

420 58 

Hobbs  V.  State,  32  Tex.  Cr.  App.  486 
Hodges  V.  Bales,  102  Ind.  494;  1 

N.  E.  C93 434 

Hodges  V.  State,  15  Ga.  117 624 

Hoge  V.  iVople,  117  111.  35 67 

Holder  v,  State.  25  S.  W.  279.  . .  460 
Holley  V.  Mix,  3  Wend,  350,  354. 

00,  61 
HoUingsworth  v.  State,  111  Ind, 

289;  12  N.  E.  490 259 

HoUon  V.  Hopkins.  21  Kan.  638. .  718 

Holmes'  Case.  14  Pet.  593 308 

Holmes  v.  State,  88  Ala.  26;  7 

South,  193 322 

Holmes  v.  State,  14  So.  486 650 

Hooker  v.  Com.,  13  Grat.  763. 

349,  353 
Hope  V.   Com.,  9  Mete.  (Mass.), 

134 507 

Hop|)s  V.  People,  31  111 641,  646 

Hopt  V.  IVopIe,  104  U.  S.  631. . .  534 

V.  Utah,  110  U.S.  .574 353 

Horm  V.  State,  102  Ala.  144 454 


PAGE 

Horn  V.  State,  98  Ala.   23;  18 

South,  320 329 

Hornbuckle  v.  Toombs,  18  Wall. 

655 138 

Hosack  V.  Weaver,  1  Yeates,  479. .  375 
Hoskins  v.  State.  27  Ind.  470. ...  73 
Houston  V.  State,  38  Ga.  165. ...  147 
Howell  V.  Stewart,  54  Mo.  400. . .  700 
Hoyev.  Bush,  1   Man.  &  G.  775; 

2ScottN.  R.  80 60 

Hoyt  V.  People,  110  U.  S.  574.. ..  349 
Huckle  V.  Money,  2  Wils.  205. . .  60 
Hudgins  v.  Kemp,  18  How.  530.  96 
Hudspeth  V.  State,  50  Ark.  534.  456 
Huffman  v.  State,  89  Ala.  33. ...  245 
Hughes  V.  People.  5  Colo.  436. . .  229 
Hunt  V.  United  States,  11  C.  C. 

A.  340 487 

Hunter  V.  Com.,  79  Pa.  St.  503, 

505 344 

Hunter  v.  State,  40  N.  J.  Law, 

495..: 407 

Hursh  V.  Bvers,  29  Mo.  470 146 

Hurtads  V.  People,  110  U.  S.  516. .  500 
Hutchinson  v.  Kimmel,  31  Mich. 

126 412 

Hyatt  V.  Sawyer,  85  Me.  285. .. .  121 

I 

Inchbald  v,   Robinson,  L.  R.,  4 

Ch.388 41C 

Ingalls  V.  State,  48  Wis.  649  ....  365 
Ins.    Co.    V.    Mosley,    8    Wall. 

397 396,  453 

Irby  V.  State,  25  Tex.  App.  203. .  396 
Izer  V.  State,  77  Md.  110 424 

J 

Jackson  v.  State,  102  Ala.  167. . .  148 
V.  State,  09  Ala.  349.511,603 

V.  State,  91  Ga.  271 650 

James  v.  Com.,  12 Serg.  &  R.  220.  375 

V.  State,  53  Ala.  380 510 

V.  Ward,   2   Mete.   (Ky.) 

271 6'52,  713 

Jeffries  v.  Com.,  12  Allen  146. . .  349 
Jenkins  v.  Mitchell,  40  Neb.  664, 

59  N.  W.  90 461 

Jenkins  v.  State,  15  Lea  (Tenn.) 

674 14 

Jennings  v.  Hammond,  9  Q.  B. 

D.  225 241 

Jerdee  v.  State.  30  Wis.  170 120 

Jerome  v.  McCarter,  21  Wall.  17.  101 

Jesse's  Case,  28  Miss.  109 608 

Jett  V.  Commonwealth,  18  Grat. 

933 127 

Johnson  v.  Com,,  85  Pa.  St.  54. .  653 
V.  People,  83  111.  431 .. .  653 
V.  Phifer,  6  Nebr.  402. .  534 


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473 
634 
73 
148 

328 


PAGE 

Johnson  V.  Riley,  18  Ga-^T,  137 .    61 
V.  State,  10  fiteuth.  Rep. 

667         ; "1'' 

Johnson  V.  Stat«k82  Tex.  Cr.  R. 

5Q4  ,^-f *"'' 

Johnson  vJlifate.  90  Ga.  441. .. .    82 

Joise  V  a»fte,  53  Ga.  50 448 

Jon^>Com:.7oPa.St.403....  539 
%  Hutchinson,  43  Ala.  721 .  291 
'    V.  Phrenix  Bank,  8  N.  Y. 

,  ^228..... ••••••• 

Jones  V.  Smith,  14  Mich.  334.*.. 

V.  State,  13  Ala.  157 

V.  State,  13  Ala.  l.'J3 

V.  State,  13  Miss.  653 

V.  State,  96  Ala.   102;   11 

South.  399 ...-. 

Jones  V.  State,  96  Ala.   103;   11 

South.  399 323 

Jones  V.  State.  19  Ind.  421 208 

Journal  Newsiiaper  Ck).  v.  Pugh, 
6Md.  App.  510 465 

K 

Kaelin  v.  Com. ,  84  Ky .  354 21 

Kane  v.  People,  8  Wend.  203. . .  346 
Kauffman  v.  People,  11  Hun  (N. 

Y.)87 619 

Keener  Case,  18  Ga.  194 591 

Keith  V.  Com.,  11  Mete.  (Mass.) 

581 653 

Keith  V.  State,  97  Ala.  32 650 

Kelly  V.  Lawrence,  3  Hurl.  & C.l.  60 
Kemmler.  In  re,  136  U.  S.  436. . .  500 
Kennedy's  Case,  135  Mass.  48 — 

489,  494 
Kennedys  Case.  2  Va.  Cas.  510. .  630 
Kennedy  v.  Howard,  74  Ind.  87. . 

652  718 
Kennedy  v.  State,  31  Fla.  428. . .'  148 
Kent  V.  People,  6  Am.  Cr.  R.  406. .  454 
Kenyon  V.  People,  26  N.  Y.  203. . 

615,  617 

Ker  V.  People,  110  111.  627 266 

V.  Illinois,  119  U.S.  436....  310 

Kev  V.  Vattier,  1  Ohio,  132 876 

Kilburn  v.  Kilburn,  89  Col.  46. .  142 
King  V.  Brazier,  1  Leach  C.  C. 

199 865 

King  V.  Buoknorth,  2  Keb.  403. .  6 
V.  Fuller,  1  Bros.  &  P.  180.  843 
V.  Pool,  Hardw.  Cas.  Temp. 

28 549 

King  V.  Railroad  Co.  7  Biss.  529..  235 

V.  State,  40  Ala.  314 153 

Kinnebrew  v.  State,  80  Ga,  286. .  158 
Kirbie  v.  State,  5  Tex.  App.  60. .  573 
Kitchen  v.  State.  41  Ga.  217..  . .  158 
Kite  V.  Commonwealth,  11  Mete. 

(Mass.)  581 713 

Klein  v.  People.  31  N.  Y.  229. ...  849 


PAGE 

Knote  V.  U.  S.  95;  U.  S.  149. . . ,  443 
Koeiin  v.  Commonwealth,  7  Am, 

Cr.  R.  452 454 

Kollock  and  another  v.  The  State, 

88  Wis.  663 381 


653 

17 
297 
713 

810 
310 
111 

715 


868 


Lamb  v.  State,  66  Md.  285 357 

Lambert  V.  Barrett,  157  U.  S.  697.  498 
V.  People.  5  Mich.  349..  412 
Lamphere's  Case,  61  Mich.  105. . 
Lampton  v.  State  (Miss.)  11  So. 

656 

Lane  v.  State,  47  N.  J.  362 

Lamey  v.  Cleveland,  34  Ohio  St. 
Lascelles  v.  Georgia,   148  U.  S. 

537 

Lascelles  v.  State,  90  Ga.  347. . . 
Lauer  v.  Liverings,  24  Kan.  275. 
Lasure  v.  State,  16  Ohio  St.  51 . . 

Lavina  v.  State.  63  Ga.  513 59 

Lawrence  v.  Com.,  30  Grat  845, 

16,  349 
Legatt  V.  Tolleny,  14  East.  302..  155 

Leigh  V.  People,  113  lb.  372 67 

Lemons  v.  State,  4  W.  Va.  755. .  254 

Leonard  v.  State,  7  Tex.  App.  435.  249 

V.  Territory,  2  Wash.  T. 

381 

Leuppie  v.  Osborn'a  Ex'rs,  52  N 

J.  Eq.  657 7 

Leverick  v.  State,  105  Ind.  277; 

4N.  E.852 436 

Levi  V.  Milne,  4  Bing.  195 551 

Lewis  V.  State,  49  Miss.  356 607 

Liebstadter    v.    Federgreeu,    80 

Hun  245 80 

Lily  v.  Griffin,  71  Ga.  .535 158 

Logan  V.  United  States,  144  U. 

S.  263,  801 212,  439 

Long  v.  State,  12  Ga.  293. . .  .589,  605 

V,  State,  52  Miss.  23,  35. . .  336 

Longwell  v.  Hartwell,  164    Pa. 

533 

Lord  v.  State,  16  N.  H.  325 

Lovett  v.  State,  28  Fla.  3.56;  Chit. 

Crim.  Law.  *  414 

Lowenthalv.  State.  23  Ala.  589.. 

Lucas  v.  Flinn,  35  Iowa  9 434 

LucuB  V.  State,  96  Ala.  51 203 

Lumley  v.  Wagner.  1  De  Gex.  M. 
&G.  617  Id.;  5  De  Gex  &  S. 

485, 16Jur.  871 180 

Lumm  V.  State,  3  Ind.  293 481 

Lundy  v.  State,  91    Ala.  100;  9 

South  189 838 

Lusk  V.  Belote,  22  Minn.  468. ...  146 

Lynch  v.  People.  38  111.  494 481 

Lyon  V.  State,  22  Ga.  399 866 

Lytle  V.  State,  31  Ohio  St.  196. .  634 


376 
555 

849 

245 


4. 


TABLE  OF  CASES  CITED. 


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PAGE 

Mabry  v.  State,  50  Arks.  492 457 

Mackesey  v.  People,  6  Parker  Cr. 

Case,  114 86 

Mackin  v.  United  States,  117  U. 

S.  348 438 

Madona's  Case,   1  Leach  C.  C. 

223 493 

Mahoney  v.  People,  43  Mich.  39.  448 
Maliniemi  v.  Goulund,  29  Mich. 

222 59 

Malone  v.  Com.,  91  Ky,  307 22 

Mansfield  v.  State,  24  S.  W.  901.  239 
Manufacturing     Co.    v.    HoUis, 

(Minn.)  55  N.  W.  1119 198 

Marion  v.  State,  16  Nebr.  349  . .  368 
Marshall  v.  State,  123  Ind.  128; 

23  N.  E.  1141 427 

Martin  v.  Copiah  County,  71  Miss. 

407 581 

Martin  v.  State,  77  Ala.  1 322 

Mason  v.  People,  26  N.  Y.  200. . .  147 

V.  Sate,  42  Ala.  532 357 

Mathews  v.  State,  33  Tex.  102. . .  301 
Mathiasv.  State,  31  Fla.  291....  387 

May  V.  People,  60  lb.  119 68 

Mayor  of  Colchester  v.  Brooke,  7 

Q.  B.  339 77 

McCall's  Case,  1  Va.  Cas.  271 ... .  628 
McCarter's  Case,  11  Leigh  633. . .  628 
McCarthy  v.  De  Armet,  99  Pa. 

St.  63 60 

Mc(  arthy  v.  State,  127  Ind.  223.  812 
McConibs  V.  State,  8  Ohio  St.  643 .  347 
McConnell  v.  State,  46  Ind.  298.  232 
MoCormick  In  re,  24  Wis.  492. . .  713 
McDaniels  v.  People,  118111.  301. .  268 
McDerniott  v.  People,  5  Parker 

Cr,  Cas.  104 86 

McDonald  v.  Bowman,  40  Neb. 

209 461 

McDonald  v.  Henderson,  74  Iowa 

619 235 

McGettrick  v.  Wasson,  4  Ohio  St. 

566 702 

McGowan  v.  State,  9  Yerg.  184.  556 
McKennon  v.  Wmn,  (Okla.)  22 

L.  R.  a  501 876 

McKenzie  v.  Bank,  28  Ala.  606. .  368 
McKinney  v.  State,  29  Fla.  565..  445 
McKnight  v.  James,  155  U.  S.  685  498 
McLeUanv.Richard8on,13Me.82.  13 
McMeekin  v.  State,  48  Id.  335. . .  710 
McNaughton's  Case,  10  Clark  &  F. 

210 644 

McNulty  V.  State,  94  Ala.  52. . . .  519 

Mead  v.  Haws,  7  Cow.  832 6l 

V.  State,  26  Ohio  St.  505. . .  715 
Meeds  v.  Carver,  8  Ired.  298. ...  58 
Melvin  v.  Fisher,  8  N.  H.  407. . .  61 
Meredith  v.  State,  122  Ind.  514; 

24  N.  E.  161 436 


PAGE 

Messner  v.  People,  45  N.  Y.  1 . . .  353 
Meyer  v.  Clark,  41  N.  Y.  Super. 

Ct.  R.  107 54 

Meyers  v.  Coin.,  ante 785,  617 

Miles  V.  State,  58  Ala.  890 667 

Miller  v.  Allen,  11  Ind.  889 652 

V.  People,  39  111.  457 68 

V.  State,  32  Tex.  Cr.  Rep. 

319 156 

Miller  v.  Stewart,  9  Wheat.  680.  475 
Mills  Co.  V.  Hamaker,  11  Iowa 

209 120 

Millsv.  Com.,  18  Pa.  St.  631 .  .653,  713 

In  re,  135  U.  S.  263-267 439 

Milwaukee  R.  R.,   Ex  parte,  5 

Wall.  188 95 

Minis  V.  State,  26  Minn.  498.  .653, 713 

Miner  v.  People,  58  III.  60 ;  412 

Minnesota  v.  Oessert,  21  Minn. 

369 404 

Minor  v.  Herriford,  25  111.  344. . .  506 
Missouri  River  Tel.  Co.  v.  First 

Natl.  Bank,  74  111.  217 503 

Mitchell  V.  State,  60  Ala.  26 347 

V.  Work,  13  R.  I.  645. . .  347 
Mitchum  v.  State,  11  Ga.  615. . .  896 
Moebs  V.  WoUfson,  123  Mass.  130.  407 

Monday  v.  State,  32  Ga.  672 82 

Money  v.  Leach,  3  Burrows,  1742, 

1746,1767 60 

Monroe  v.  Brigham,  9  Pick.  368.  409 

V.  Case,  5Ga.  86 591 

Montague  v.  Flockton,  L.  R.  16 

Eq.   189 180 

Montee  v.  Com.,  8  J.  J.  Marsh 

149 556 

Montgomery  v.  State,    11  Ohio 

424 556 

Moore  v.  Illinois,  14  How.  18. . ..  127 
Morelock  v.  State,  90  Tenn.  528. .  398 
Morgan  v.  State,  48  Ohio  St.  376.  261 
Ex  parte,  114  U.  S.  174; 

5  Sup.  Ct.  825 102 

Morris  Run  Coal  Co.  v.  Barclay 

Coal  Co.,  68  Pa  St.  173 197 

Mrous  V.  State,  81  Tex.  Cr.  App. 

597 •.  610 

Mullin  V.  People,  15  Colo.  437. . .  229 

Mullins  V.  People,  1 10  111.  42 66 

Murray  v.  Green,  64  Cal.  363 144 

Myers  v.  State,  4  Ohio  Cir.  Ct.  R. 

573 265 

Myers  v.  State,  46  Ohio  St.  473. .  223 
V.  State,  4  Ohio  Cir.  Ct.  R. 

575 266 

Nat'l  L,  Ins.  Co.  v,  Robinson,  8 

Neb.  452 121 

Neal  V.  State,  64  Ga.  27* 406 

Neel  V.  State,  9  Arks.  259. . .  .232,  235 


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Negro  Ann  Hammond  v.  State, 

14Mcl.  141) 131 

Nela  V.  State,  3  Tex.  280 5o0 

Nelson  v.  Doiclienius.  52  111.  236.  658 
V.  Iliivwood  Co.  91  Tenn. 

596;  20  S.  \V.  1 291 

Nesbit  V.   People,  19  Colo.  441; 

36Pao.  221.    228 

New  Orleans  V.  Steamship  Co. .  20 

Wall.  (U.  S.),  387 225.  226.  230 

Newcomb's  Case,  37  Miss.  397. . .  607 
Nicholson  v.  Com.,  96 Pa.  St.  503.  556 
Noyes  v.   State,  41  N.  J.   Law 

418 48 

Nudd  V.  Barrows,  91  U.  S.  426, 

438 342 

Nutt  V.   State,  63  Ala.  180;  Ex 

parte  Brown,  65  Ala.  466 322 

o 

Octon  V.  State.  5  Ala.  463 73 

Ogle  V.  Lee.  2  Cranch  33 475 

O'Neale  v.  Com.,  17  Grat.  583. . .  143 
O'Neil  V.  People,  15  Mich.  27.5. . .  72 
O'Reilly  v.  Edrington,  96  U.  S. 

724 101 

Ortwein  v.  Com.,  76  Pa.  St.  414.  644 

Osbom  V.  State,  52  Ind.  526 18 

Otmer  v.  Put)ple,  76  111.  149 69 

Overbee's  Case,  1  Rob.  (Va.)  756, .  628 
Owensl)y  v.  State,  82  Ala.  63. . . .  67 
Oxford's  Case,  9  Car.  &  P.  525.. .  644 

P 

Palmerston  v.  Territory,  3  Wyo. 

333                              .  261 

Pantoii  V."  People,  114  iil.  505. ...  337 

Parish  v.  State.  14  Neb.  60 556 

Parker  et  al.  v.  State,  35  N.  E. 

179 504 

Pai-ker,  Ex  parte,  120  U.  S.  737;  7 

Sup.  Ct.  767 102 

Parker,  Ex  parte,  131  U.  S  221..  102 
Parkinson  v.  United  States,  121 

U.S.  281 439 

Parminter  v,  Copeland,  6  Mees.  & 

W,  105 551 

Parsons  v.  State,  81  Ala.  577. .. .  642 

Patterson  V.  Hayden,  17  Or.  238.  611 
Pendey  v.  State  (Tex.  Cr.  App.), 

31S.  W.  647 ..  511 

Pennsylvania  v.  Bell,  Add.  156. .  556 
V.  Sullivan,  1  Add. 

143 659 

People  V.  Adams,  3  Denio,  190..  47 

V.  Andei-son.  44  Cal.  65. .  556 
V.  Ah  Lee  Doon,  97  Cal. 

171 597 

People  V.  Barker,  60  Mich.  277. .  1,53 

V.  Bai-nhart,  59  Cal.  384. .  601 


PAOK 

People  V.  Barry,  31  (^al.  357 383 

V.  Bauer,  37  Hun  407....     73 

V.  Bearss,  lOCal.68 319 

V.  Berlin.  9  Utah  383. . . .  516 
V.  Bevers.  99  Cal.  286. . . .  412 
V.  Blancliard,  90  N.    Y. 

314 709 

People  v.  Bonney,  19  Cal.  426;  1 

Bish.  Crini.  Pro.  i;S  993,  994;  13 

Am.  and  Eng.  Enivc).  L.  371.  406 

People  v.  Bradiier.  10"7  N.  Y.  1 . .  441 

V.  Brewer,  27  Mich.  138. .     34 

V.  Brigham,  3  Midi.  550. .  301 

V.  Brotherton,  47  Cal.  388, 

404 601 

People  V.  Brown,  5a  Mich.  531 . .  453 
v.  Burke,  11  Wend.  129. .  407 

V.  Burns,  77  Hun  92 493 

V.  Bush,  14  Hill  133 80 

V.  Cannon,  139  N.  Y.  32. .  294 
V.  Caipenter,   103    N.   Y. 

238 639 

People  V.  Canienter,  9  Barb.  580.  4 
V.  Carrier,  46  Jlich.  443. .  14 
V.  Caton,  25  Mich.  388. . .  301 
V.  Chagary,  18  Wend.  637.  5 
V.  Chapman,  7  Am.  Cr.  R. 

568 449 

People  V.  Clark,  33  Mich.  117. ...  611 
V.  Clark,  33   Mich.  112.. 

609,  616 
V.  Clementsliaw,  59  Cal. 

385 346 

People  V.  Cook,  61  Cal.  478 4 

V.  Cotta,  49  Cal.  166 153 

V.  Court  of  Session.s,   141 

N.Y.  288 704 

People  V.  Crowley,  102  N.  Y.  234  448 
V.  Cummings,  88    Mich. 

251 492 

People  V,  Curtis,  76  Cal.  57 606 

V.  De  Fore,  64  Mich.  693. .  611 

V,  De  Lay,  80  Cal.  52 2.50 

V.  Demousset,  71  Cal.  711     14 

V.  Dewolf ,  62  111.  253 289 

V.  Dolan,  96  Cal.  315 18 

V.  Edwards,  25  N.  Y.  S. . .  144 
V.  Enoch,  13  Wond.  1.59. .  501 

V.  Farrell,  31  Cal.  576 604 

V.  Fonda,  62  Mich.  401;  29 

N.  W.  26  . :  129 

People  V.  Fowler,  88  Cal.  138. ...  18 
V.  Galland,  ,55  Mich.  628. .  250 

V.  Gill,  6  Cal.  637 404 

V.  Glynn,  54  Hun  333;  7 

N.  Y.  Supp.  555 603 

People  V.  Gordon,  70  Cal  467 449 

V.  Graves,  31  Hun  382. . .  442 
V.  Gray.  66  Cal.  371.  .245.  263 
V.  Gustin,  .57  Mich.  408. . .  251 
V.  Haley,  48  Mich.  495...  .52 
V.  Hanan,  N.  W.  328 487 


People 

C.  K 
People 


IL 


mim 


TABLE  OF  CASES  CITED. 


XV 


PAGE 

People  V,  Handley.  93  Mich.  49. .  70 
V.  Harrington,  15  Abb.  N. 

C.  161 442 

People  V.  Harris,  29  Lai.  678. ., .  534 
V.  Haynes,  14  Wend.  547; 

In  re  Snvder,  17  Kan.  542 284 

People V.  HflbinR,  59  Oal.  567. . ,  606 
V.  Hennessv,    15    Wend. 
150;    1.   Wliart."    Crim.    Law, 

1061 245 

People  V.  Hoin,  62  Cal.  120 641 

V.  Howell.  4  Johns.  301. .  300 

V.  Hulse,  3  Hih,  309 619 

V.  Hyndman.99Cal.l.  .337,630 

V.  Ivev,  49  Cal.  56 556 

V.  January,  77  Cal.  179. . .  597 
V.  Johnson,  91  Cal.  265;  27 

Pac.  603 517 

Petiple  V.  Johnson,  140  N.  Y.  350; 

35  N.  E.  604 368 

People  V,  Jones,  46  Midi.  441 85 

V.  Judigo,  128  N.  Y.  589..  499 
V.  Kearney,  110N.Y.193.  618 

V.  Kelly.  42  N.  Y.  74 237 

V.  Kinsey,  51  Cal.  278. ...  606 
V.  Ljiurence,    137    N.    G. 

517 517 

People  V.  Lawrence,  21  Cal.  368; 

Bish.  Cr.  Proc,  i5 1209 398 

People  V.  I,awton,  56  Barb.  126. .  86 
V.  Liscomb,  60  N.  Y. ;  574 

et  seq 267,  653 

People  V.  Lowenthal.  93  111.  191.  290 
V,  Marshall.  59  Cal.  386.  .  15 
V.  McArdle,  5  Parker,  Cr. 

R.  180 25 

People  V,  McGonegal,  136  N.   Y. 

62..... V 49 

People  V.  McLean,  68  Mich.  495.  56 
V.  McQuade,    110    N.    Y. 

284 366 

People  V.  Mead,  50  Mich.  228. ...  347 
V.  Merrill,  2  Parker,  Crim. 

R.  590 44 

People  V.  Miller,  66  Cal.  468 520 

V.    Mil    .High,     11    Mich. 

278,282 613 

People  V.  Moore,    62   Mich.    496 

490,  495 

People  V.  Moran.  123  N.  Y.  254. .     84 

V.  Murphy.  45  Cal.  137...     67 

V.  Nelson,  56  Cal.  82 601 

V.  O'Neil,  47Id.  109 227 

v.O'Laughlin.  3Utah,  133.  586 
V.  Oyer  &    Terminer  Co. 

Ct,  83N.  Y.  340 284 

People  V.  Penhollow,  5  N.  Y.  Cr. 

R.  41 369 

People  V.   Perkins,  1  Wend.   91; 

349,  353 

V.  Pine,  2  Barb.  566 556 

V.  Pirfenbrink,  96111.  68..  223 


PAGE 

People  V.  Potter,  1  Parker  Crim . 

R.  47 491,  493 

People  V.  Randolph,  2  Park,  Cr. 

R.    174 445 

People  V.  Randolph,  2  Park,  Cr. 

R.   213 446 

People  V.  Rathbun,    121  Wend. 

534 48 

People  V.  Reilly,  53  Mich.  260;  18 

N.  W.  849 442 

People  V.  Reilly,  53  Mich.  260. .  504 
V.    Robinson,     2    Parker, 

Crim.  R.  235 534 

People  V.  Roderigas,  49  Cal.  9. . .  .618 
V.  Ruggles,  8  Johns  (N.  Y.) 

294 696 

People  V,  Slack,  15  Mich.  193. ...  412 
V.  St.  Clair,  38  Cal.  137. . .  146 
V.  Stevens,  47  Mich.  411. .  306 

V.  Stites,  75  Cal.  570 86 

V.  Sullivan,   8  N.  Y.  396.  .624 
V.  Superior  of  Chenango, 

8N.  Y.317 291 

People  V.    Tinder,   19  Cal.  539, 

480.  48.". 
V.  Tomlinson,  66  Cal.  345,  245 
V.  Tweed,  5  llun  353. ...  346 
V.  Van  Zile,  73  Hun  534.     49 

V.  Vice.  21  Cal.  344 .595 

V.  Whaley,  6  Cow.  661.  295 
V.  Whipple.  9  Cow.  715,  442 

V.Wiley,  3  Hill,  194 1.59 

V.  Young,  31  Cal.  563. ...  425 
Peough  V.  Davis,  110  U.  S.  227:  4 

Sup.  Ct.  17 96 

Petei-son  v.  State,  45  Wis.  535. . .  349 
Pettibone  v.  U.  S.,  148  U.  S.  197.  670 
Phillips  V.  Hall,  8  Wend.  610. ...  567 

V.  State.  29  Ga.  105 65 

v.Trull,  11  Johns.  486...     52 

V.  Welch,  11  Nev.  187. . .  230 

V.  Welch,  11  Nev.  188. . .  227 

V.  Welsh,  13  Nev.  158. . .  233 

Pickett  V.  State,  22  Ohio  St.  405.  713 

Pierce  v.  State,  13  N.  H.  536.  .543,  555 

Pierson  v.  State  (Cala.),  13  South. 

550 155 

Pierson  v.  State,  12  Ala.  149.  .207,  556 
Pigman  v.  State,  14  Ohio,  155.. .529, 534 
Pinnaman  v.  State,  58  Ga.  336. . .  1.58 
Pleasant  v.  State,  13  Ark.  300  .. .  556 

Polk  V.  iState.  40  Ark.  482 610 

Pond  V.  People.  8  Mich.  150, 177. .  336 
Poolv.  State  (Tex.  Cr.  App.),23 

S.  W.891 454 

Porter  V.  State  (Tex.  Cr.  App.),  26 

S.  W.  626 448 

Porterfield    v.    State,   92    Tenn. 

289 583 

Poultney  v.  City  of  La  Fayette, 

12  Pet.  472 97 

Pound  Case,  43  Ga.  89 594 


I, 


n 


11 


XVI 


AMERICAN  CRIMINAL  REPORTS. 


!!  I 


TAOE 

Pound  V.  state,  43  Ga.  127 587 

Pow  V.  Beckncr,  3  Ind.  475;  1 

BiHh.  Crim.  Pioc.  183, 184 52 

Power  V.  Price,  16  Wend.  448. ...  430 
Powell  Duffiyn  Steam  Coal  Co. 

v.TaffValeRy.Cc.OCh.App. 

331    335  1^" 

Piite'v.  Com.,  21  Grat.  840 148 

Prime  v.  Com.,  183  Pa.  St.  103. 

341),  353 

Prince  v.  State,  30  Ga.  27 580 

V.  State.  44  Tex.  48. .  .052, 713 
Prindle  v.  State,  21  S.  W.  300. ...  060 
I'utnam  v.  State,  29  Tex,  App. 

454 610 

Q   . 

Quarles  v.  State,  1  SnGed407. . . .  383 
Queen  v.  Bamber,  5  Q.  B.  279. . .  523 
V.  Dee,  14  L.  R.  Jr.  408. .  448 
V.  Flattery,  2  B.D. 410...  448 
V.  Henrick,  5  Q.  B.  49. . . .  187 
V.  Maisden,  1 L.  R.  C.Cas. 

131 54 

Quinn  v.  Heisel,  40  Mich.  576. . .    52 

R 

Rachels  v.  State,  51  Ga.  874. ...  S^'O 
Rafferty  v.  People,  09  111.  Ill . . .  01 
Railway  Co.    v.  Anderson,    82 

Tex.  516;  17  S.  W.  1039 394 

Railroad  Co.  v.  City  of  Wheel- 
ing, 13  Gratt  (Va.)  40 223 

Railroad  Corp.  y.  Dana,  1  Gray 

83,  104 113 

Railway  Co.  v.  Etzler,  119  Ind. 

39 503 

Railway  Co.  v.  Holland,  82  Ga. 

257 390 

Railway  Co.  v    Miller,  37  N.  E. 

343 435 

Railroad  Co.  v.  Wheeling,  13 
Gratt.  (Va.)  57;  ex  parte  Kear- 
ney, 1  Wheat  (U.  S.)  38 225 

Ramsey  v.  Fay ,  10  Ind.  493 53 

V.  State,  93  Ga.  53 570 

Randolph  v.  Preston,  52  Vt.  198.  537 
V.  Woodatock,  35  Vt. 

291 538 

Ratcliflfe  v.  Wales,  1  Hill  08. . . .  5 
Ray  V.  State,  15  Ga.  223, 244. ...  593 
Ray  V.  Thompson,  26  Mo.  App. 

430 10 

Reed  v.  State,  15  Ohio,  217 200 

Reese  v.  State,  73  Ala.  18 520 

Reg.  V.  Aspinall,  2  Q.  B.  D.  48. .  382 

V.  Baldry,  2  Den.  C.  C.  430. .  273 

V.  Ball,  1  Car.  &  M.  249. .. .    85 

V.  Banks,  12  Cox  Cr.  Cas. 

393 85,  668 


PAGE 
Reg.  V.  Barton,  3  Cox  Grim.  Cas. 

378 639 

Reg.  V.  Bate  and  others,  11  Cox 

C.  C.  080 271 

Reg.  V.  Birmingham  and  G.  R. 

Co..  9  Cor.  409 871 

Reg.  V.  Brown,  24  Q.  B.  Div.  857.  85 
V.  Browning,  3  Cox  Crim. 

fas.  437 430 

Reg.  V.  Buckmasler,  20  Q.  B.  D, 

183 513 

Reg.  V.  Button,  8  Car.  &  P.  600.  81 
V.  Clayton,  1  Car.  &  K.  128  668 
V.  Chapman,  13  Cox  Crim. 

Cas.  4 56 

Reg.  V.  Cooper,  13  B.  D.  19 279 

V.  Crowhui-st,  47  E.  L.  370.  143 
V.  Davis,  14  Cox  Crim.Cas. 

503 584 

Reg.  v.Doherty.iaCoxC.C.  38..  271 
V.   Eagleton,  Dears    Crim. 

Cas.  515 85 

Reg.  V.  Eyre,  3  F.  &  F.  579 452 

V.  Fenuell,  7Q.  B.D.  147.. 

150,  273 
Rep.  V.  Forester,  Dear.  Cr.  Cas. 

456 856 

Reg.  V.  Foxworthy.  7  Mod.  153. .  493 

V.  Francis,  Id.  613 85 

V.  Gardner,  1  Den.  C.  C.  339.  271 
V.  Garrett,  23  Eng.  Law  and 

Ex.611 48 

Reg.  V.  Geering,  18  Law  J.,  M. 

Caa.  315 357 

Reg.  V.  Gibbon,  L.  &  C.  109 424 

V.  Gillia,  11  Cox  C.  C.  69. . .  271 
V.  Goodall,  3  Cox  Cr.  Cas.  41    85 
V.  Goodchild,  3  Car.  &  K. 
293    . .  85 

Reg.  v.Graj'.'i'Fost&F.'VloV.*  356 
V.  Hensler,  11  Cox  Cr.  Cas. 

570 85 

Reg.  V.  Holmes,  12  Cox  Cr.  Cas. 

137 347 

Reg.  V.  Gulston.  2  Ld.  Raym.  1210.  585 
V.  Hunt,  8  C.  and  P.  642. .. .  241 
V.  Jarman,  14  Cox  Cr.  Cas. 

112 85 

Reg.  V.  Jarvis,  L.  Rep.  1 C.  C.  R. 

96 273 

Reg.  V.  Larey,  3  C.  &  K.  26  and 

Sec.  27  L.  J.  (M.  C.)   10 424 

Reg.  V.  Lines,  47  E.  C.  L.  393. . .  448 
V.  Mabel,  9  Car.  &  P.  474. .  52 
V.  Marriott,  8  C.  &  P.  425. .  419 
V.  McKale,  Law.  Rep.  1 C.  C. 

125 514 

Reg.  V.  Moore,  2  Den.  C.  C.  522.  272 
V.  Murphy,  Jebb  C.  C.  (Ir.) 

315 668 

Reg.  V.  Oddy,  6  Brit.  Crim.  Cases 
200 362 


ReR.  V.  I 

337. . 
Reg.  V. 

655). . 
Reg.  V. 

84  E. 
Reg.  V. 

108,  5| 
Reg.  V. 

V. 

V. 

V.  I 

V. 

V. 

V. 

363..  I 
Reg.  V. 

V. 
V. 

Cas.  2 
Reg.  V. 

V. 
V. 

54 
Reg.  V. 

16  Co^ 
Reg.  V. 
V. 

V. 

.358 . . 

Reg.  V. 

C.  44' 

Reg.  V. 

114 . . 

Reinex 


31 


^m 


TABLE  OF  CASES  CITED. 


XVll 


PAGE 

ReR.  V.  O'Donnell,  7  Cox.  Cr.  Cas. 

837 457 

Reg.  V.  Overton  (Car.  &  Mursh. 

655) 424 

Reg.  V.  Parish.  8  Car.  &  P.  94; 

84  E.  C.  L.  628 551 

Reg.  V.  Parnell,  14  Cox  Cr.  Cas. 

108,  514 186 

Rej?.  V.  Peck,  9  Adol.  &  E.  690. .  195 
V.  Peters.  1  Car.  &  K.  245. .  675 
V.  Phetheon,  9  Car.  &  P.  553  673 
V.  Phillips,  8  Car.  &  P.  786. .  446 
V.  Ranstord,  1 3  Cas.  r^iim . 9  85 
V.  Reardon,  4  F.  &  F.  76. . .  452 
V.  Reeve,  L.  Rep.  1  C.  C.  R. 

362 272 

Reg.  V.  Ring.  66  L.  T.  'N.  S.)  300  85 
V.  Robson,  26  Q  B.  D.  137  241 
V.  Roebuck,  Dea:  ..  &  B.  Cr. 

Cas.  24 85 

Reg.  V.  Shepherd,  L.&  C.  147...  419 
V.  Solev,  2  Salk.  593,  594. .  585 
V.  Staiher,  39  L.  J.  (M.  C.) 


54 


242 


412 

52 

522 

54 


Reg.  V.  Tolson,  23  Q.  B.  D.  168, 

16  Cox.  Ch-.  Caa.  629 

Reg.  V.  Tooley.  2  Ld.  Ravm.  1301 
V.  Tyler,  8  Car  &  P.  616... 
V.  Walker,  Dears.   C.   Caa. 

.358 

Reg.  V.  Warringham,  2  Den.  C. 

C.447  N 271 

Reg.  V.  Young,  14  Cox.  Cr.  Cas. 

114 448 

Reinex  v.  State,  51  Wis.  152. .. .  704 
Reniger  v.  Fogoasa,  1  Plow.  19. .  523 
Respublica  v.  McCarthy,  2  Dall. 

86 522 

Rex  v.  Benfield,  2  Burrows,  980: 

1  Chit.  Crim.  Law.  108.  209. ...     ■  ' 
Rex  V.    Berg,    2  Dennison,   Cr. 

Caa.  99 J! 

Rex  V.  Binglev,  5  Car.  &  P.  602 

V.  Boulton,  5  C.  P.  537 .  ,2 

V.  Buckjnaster,  20  Q.  B,  D. 
IR*) 
Rex  V.  Biirdett,  4  Barn.  &  Aid. 

131 

Rex  V.  Butler.  6  Car.  &  P.  368. . 
V.  Callingwood,  2  Ld.  Rayni. 

1116 

Rex  V.  Clark,  2  Starkie,  241 ... . 
V.     Clewes,    4  Car.  &    P. 

221 272,  358 

Rex  V.  Cooke,  2  B.  C.  618;  5  B. 

&  C.  538 166 

Rex  V.  Cross,  1  Ld.  Raym.  711:  2 

Hawk.  P.  C,  c.  47  par.  6 344 

Rex  V.  Crutchley,5  Car.  &  P.  133..  520 
V.    Dean    of    St.   Asaph,  3 
Term.  R.  128 552 


514 

551 
667 

668 
347 


PAGE 

Rexv.  Donally,  2  East,  P.    C. 

715,   725 312 

Rex  V.  Dunn,  1  Moody  Cr.  Cas, 

146 356 

Rex  V.   Eldershaw,  3  Car.  &  P. 

396 446 

Rex  V.  Ellis,  6  B.  «&  C,  145 357 

V.  Foster,  6  C.  &  P.  325. . . .  452 

V.  Friend,  R.  R.  20 419 

V.  Galloway,   1   Moody,  Cr. 

Cas.,  234 346 

Rex  V.  Geary,  2  Salk,  630 533 

V.  Gill.  2  Barn.  &  Aid.  204..  342 

V.  Gordon,  1  Leach  515 319 

V.  Groombridge,    7  Car.  & 

P.  582 446 

Rex  V.  Hamilton,  7  Car.  &  P.  448  342 
V.  Hargrave,  5  Car.  &  P.  170  403 
V.  Harris,  1  Ld.  Raym.  267,  3.53 

V.  Harris,  1  Ld.  482 719 

V.  Harris,  6  Car.  &  P.  129. .  667 

V.  Harvey,  1  Leach.  467 513 

V.  Higgins,  2  East  5 668 

V.  Holden,  Russ.  &  R.  1^4. .  85 
V.  Jacobs,  Russ.  «&  R.  331 . .  6(50 
V.  Lloyd,  7  Car.  &  P.  318. .  448 
V.  Miller,  1  Leach.  C.  C.  74.  493 
V.  Mogg,  4  Carr.  &  Payne 

364 362 

Rex  V.  Moore.  3  Barn.  &  Ad.  184  416 
V.  Murphy.  6  Car.  &  P.  103  317 
V.  Oliver,  2  Rus.  on  Crimes, 

170 514 

Rex.  V.  Oneby,  2  Strange  766..  549 
V.  Patience,  7  Car.  &  P.  775  5;3 
V.  Ratcliffe,  18  Hon.  St.  Tr. 

429 719 

V.   Robeson,    Russ.    &    Ry. 

413 .514 

Rex  V.  Roderick,  7  Cor.  &  P.  795.  663 
i .  Stewart,  Adol  &  E.  711. .  195 

V.  Speke,  3  Salk.  358 533 

V.     Wnkefleld,      2     Russel 

Crimes,  6(»a 4 

Rex  V.  Wilkes,  4  Burrows,  2575.  713 
V.  Wright,  4  F^^st.  &  F.  967.  448 
Revnolda  v.  People,  41  How,  Pr. 

l'79 448 

Reynolds  v.  U.  S.  95  U.  S.  145. . .  127 
Rice  v.  Commonwealth,  12  Mete. 

(Mass.)246 72 

Rice  V.  Rice,  47  N.  J.  Eq.  559. . .    88 

v.  State,  16  Ind.  298 351 

Rich  v.  Keyser,  54  Pa.  St.   86, 

89 104 

Richardson  v.  Rairdin,  88  111.  24.  506 
V.  State,  54  Ala.  158.  449 
V.  Turnpike  Co.  6  Vt. 

496 537 

Richmond  v.  Moore,  107  111.  429.  702 
Riddle's  Case,  30  Tex.  App.  426. .  657 
Ridenhour  v.  State,  75  Ga.  382. .  m^ 


1 


xvm 


AMERICAN  CRIMINAL  REPORTS. 


ki 


PAOE 

RilfV  V.  State,  9  Humph.  (Tenn.) 

m '404 

Rhea  v.  State  (Ala.),  14  South, 

M.5a l-'"'-"' 

Rhea  v.  St.nte,  10  Yerff.  2.*)8 07 

Rhodes  V.  StatP,  23  Ind.  24 34!l 

Rol)h  V.  Hewitt,  89  Neh.  219. ...  121 

Rohhins  V.  State,  8  Ohio  St.  131.  .Wt! 

Rohertsv.  Lindley.  121  Ind.  .W. .  .503 

V.  People,  19  Mieh.  401..  .'529 

V.  State,  14Ga.  8 708 

V.  State,  68  Ala.    l.'ifl....  322 

V.  State.  14  Mo.  138 .W 

Rodgei-s  V.  People.  86  N.  Y.  360. .  146 
Roe  V.  Superior  Court.  60  1(1.93. .  227 
Rogers  v.  Com . . .'» Serg-  &  R.  363 . .  Sii 
V.  Dutt,   13  Moore  P.  0. 

209 198 

Rohan  V.  Sarvin.  .'>  Cush.  281 .. .     59 

Rr.lls  V.  State,  .52  Miss.  391 349 

Romevn  v.  Caplia.  17  Mich.  4.').5. .  227 
Rothchild  V.  State,  7  Tex.  App. 

.'il9 11 

Rowley  v.   London  and  North- 

westeni  Ry.   Co.  Law  Kep.  8 

Ex.  221 279 

Rufer  V.  State,  2.')  Ohio  St.  464. .  860 
Rungv.  Shonenherger.  2  Watts 

23;  4  Wait,  Act  &  Def.  778. .. .  77 
Runvan    v.  State.    57  Ind.    80; 

2  Am.  Cr.  Rep.  318;   2  Whart. 

Cr.  Law,  g  1019 337 

Runyan  v.  State,  57  Ind.  80.  83. .  334 
Runnels  v.    Fletcher,   15  Mass. 

525 296 

Russell  V.  Com.,  7  Serg.   &  R. 

489 653,  713 

S 

Saflford  v.  People,  1  Parker  Crim. 

R.  474 556 

Sagev.  Railroad  Co.,  96  U.S. 

712 96 

Sam  V.  State.  33  Miss.  347 65 

Samjison  v.  State,  .54  Ala.  241 .. .  152 

Samuel  v.  Payne,  1  Dong.  3.59 . . .  58 

Sanger  v.  Truesdail,  8  Mich.  543. .  473 

Sasse  V.  State.  69  Wis.  530 349 

Saaser  v.  State,  13  Ohio.  453 260 

Sayers  v.  Com.,  88  Pa.  .St.  291. .  644 
Scaggs  V.  State,  8  Smedes  &  M. 

722 349,  353 

Schinimelpenich    v.    Bayard,    1 

Pet.  264 475 

Schirmer  v.  People.  ;!3  111 349 

Schmidt  V.  Simmons  (ind.  Sup.), 

36  N.  E.  516 481 

Scoggins  V.  State,  32  Ark.  205. . .  143 

Scotts'  Case,  14  Grat.  687.  694. . .  344 

Scott  V.  Ely.  4  Wend.  ,5.55 61 

V.  Grottkan,  73  Wis.  589. .  704 


PAOE 

Scott  V.  State.  42  Ark.  73 595 

V.  State,    94    Ala.    80;    10 

South  .505 1.50 

Scruggs  V.  State.  90  Tenn.  81 14 

Seauv  V.  State,  «  Blackf.  403. . . .  295 
Self  ridge  Case.  Horr.  &  T.  Caa.  8.  624 
Serjeant  v.   Biddler,  4  Wheat. 

5U8 475 

Sewell  V.  State  (Ala.),  13  South. 

.5.5.5 1.50 

Shade  v.  Clipson,  8  East  328. ...  «() 
Shalfer  v.  Com..  72  Pa.  St.  60. . .  3.50 

V.  State.  22  Ohio,  1 144 

Shanley  v.  Wells.   71   111.   78;  1 

Am.  &  Eng.  Ljiw.  737 .55 

Shannahan  v.  Com..  8  Bush.  463..  529 
Shannon  v.  Hav.  100  Ind.  5S1). . .  .503 
Sliaron  v.  Sharon.  79  Cal.  633. . .  143 
Shattuck  V.Woods.  18  Mass.  171. .  290 
Shapoonmash  v.  U.  S. ,  1  Wasli. 

T.  188 3.53 

Shaw  V.  B<>nson,  11  Q.  B.  D 241 

Shay  V.  Thomi)son,  59  Wis.  .540. .   150 

Sheer  v.  Keown.  29  Wis.  ,586 61 

Shen-y  v.  Perkins,  147  Mass.  212 

(17  N.  E.  307) 183 

Shields  v.  State,  32  Tex.   Cr.  R. 

498 448 

Shipman  V.  Clark.  4  Denio  446. .  569 
Shoecral't  v.  Bailev,  25  Iowa  553.     14 
V.  State'(Ind.  Sup.),  36 

N.  E.   1113 : 4.54 

Shorter  v.  People,  2  N.  Y.  193. . .  624 
Shugart  v.  Miles,  125  Ind.  445. . .  503 
Shular  v.  State,   105  Ind.   298;  4 

N.  E.870 369 

Siherry  v.  State  (Ind.  Sup.),  33  N. 

E.681 308 

Simpson  v.  State,  4  Humi)li.  461 . .  407 
Simmons  v.  United  States,   142 

U.  S.  148 212 

S-ingleton  v.  Ellison  (189.5),  1  L.  R. 

(Q.  B.  D.)607 239 

Sizemore  v.  State,  3  Head.  26. . .  127 
Slocum  V.  Poople,  90  111.  274  . .  15,  24 

Smails  v.  White.  4  Neh,  357 2.55 

Smedley  v.  State,  30  Tex.  214. . .  595 

Smith  V.  Com.,  1  Dur.  224 642 

V.  Com.,  ,54  Pa.  St.  209. . .  668 
V.   Insurance  Co.,  60  Vt. 

,682 : 538 

Smith  V.  Miles.  5  Vt.  245 658 

V.  Niles.  20  Vt.  320. ......  566 

V.  People,  8  Colo.  457 353 

V.  Peoi)le,  115  111.  17;  3  N. 

E.  Rep.  733 147 

Smith  V.   State,   31    Tex.  Critii'. 

Rep.  315 405 

Smith  V.  State,  53  Ala.  486. ." ." '. '. '.  396 

V.  State.  9  Ala.  99 67 

V.  State.  34  Neb.  689 255 

V.  State,  55  Miss.  531 284 


Sniitl) 
Hiiellif 

Snydl 

Soveil 

Speml 

Leil 

SiM'nJ 

25ti 

Spiet^ 

BiH 

991 

Spied 


TABLE  OF  CASES  CITED. 


XIX 


PAGE 

Sniitliec  v.  Campbell, 14  Ark.  471 .  291 

Sn.llinK v.  State,  87  Ga.  50 5  0 

Snow,  Ex  parte,  120  U.  S.  274..  C53 
Snyder  v.  People,  26  Mich.  106. .  70 
SoverciRn  v.  State,  7  Neb.  410. . .  205 
Spencer    v.    Commonwealth,     2 

LeiKh  751 302 

SiK'nce  V    McGowan,  13  Wend. 

250 500 

Spicer    v.  State,  69  Ala.    159;  1 
Bish.  Cr.  Proc.,  Par.  Ill,  125, 

995  ^'t  neq 354 

Spies  V.  People,  122  lb.  1 08 

V.  People,  122  HI.  82. .  .2.52,  201 
Spinning  Co.  v.  Riley  L.  R.,  6  Eq. 

551 183 

Siwuse  V.  Ccni.,  81  Va.  374 206 

Stack  V.  Peop.o,  80  111.  32 053 

Stafford's  Case,  12  Coke  37 059 

Stanton  v.  Hart,  27  Mich.  639. . .  60 
State  V.   Al)sence,  4  Port.  (Ala.) 

397 595 

State  V.  Addy.  43  N.  J.  Law  114.  442 
V.  Addington,    2    Bail    L. 

{510;  5  Am.  Dec.  150 193 

State  V.  Ah  Loi,  5  Nev.  99 595 

V.  Alexander,  30  S.  C.  74. .  639 
V.  Anone,  2  Nott.  &  McO. 27  43 
V.  Antonia,  3  Brev.  502. . .  127 
V.  Arciiibald,  43  Minn.  328,  252 
V.  Arnold.  12  Iowa,  483. . .  034 
V.  Atherton,  50  Iowa  189.  449 
V.Avery.   7    (  onn.  266;  18 

Am.  Dec.  105 663 

State  V.  Bapin,  41  Minn.  285. .. .  449 

V.  Bailey,  50   Ohio  St 348 

V.Bailey,  32  Id.  83 112 

V.  Baker,  (Iowa)  56  N.  W. 

425 121 

V.  Baker,  20  Mo.  339 12 

V.  Baker,  33  W.  Va.  319. . .  630 
V.  Barnwell,  80  N.  C.  470. .  650 

V.  Barrow,  37  Vt.  57 540 

V.  Becht,  23  Minn.  411 .  .232, 235 
V.  Beebee,  (Iowa)  54  N.  W. 

479 486 

State  V.  Behrens.  (N.  C.)  19  S.  E. 

220 454 

State  V.  Benham,  7  Conn.  414. . .  653 
V.  Bell.  27  Md.  675,  677. .. .  345 
V.  Bittick,  103  Mo.  183. .  . .  143 
V.  Boardman,  64  Me.  523. .  239 
V.  Bt)ise,  1  McMul.  189. ...  346 

V.  Borgman.  Id.  34 43 

V.  Bowan,  16  Kan.  476 404 

V.  Bowers,    15    Law    Rep. 

Ann.  199 668 

State  V.  Bradshaw,  29  Atl.  939. .  298 
V.  Brandon,  8  Jones  (N.  C.) 

463 644 

State  V.  Braunschweig,    86    Mo. 
897 849 


PAGE 

State  V.  Bridgman,  49  Vt.  203. . .  358 
V.  Bjinkhaus,  34 Minn.  287.  619 
V.  Britton.  U  McCord,  256.  143 
V.  Broadax.  91  N.  C.  543. . .  1.56 

V.  Brooks,  99  Mo.  573 728 

V.  Broughton,  7  Ired.  06..  424 

V.  Brown,  6  Wash.  609 578 

V.  BrowT!,  1  Hayw.  (N.  C.) 

100 407 

V.  Buchanan,  5  Harr.  and 

J.  358 187,  376 

State  V.  Buck,  120  Mo.  479 294 

V.  Buckley,  40  Conn.  247. .  557 
V.  Buckner,  25 Mo.  167.. 349, 3.53 

V.  Burgdorf,  53  Mo.  65 448 

V.  Burke,  73  N.  C.  83. .  .312,  510 
V.  Burlingham.  15  Me.  104.  6 
V.  Burnham,  15  N.  H.  396, 

401 186 

State  V.  Burns,  99  Mo.  473 16 

V.  Burton,  3  Ind.  93 296 

V.  Caaron,  87  Am.  Dec 406 

V.  Calhoun,  72  Iowa  432. . .  595 

V.  Carlton.  48  Vt.  630 396 

V.  Carpenter.  54  Vt.  551 ...  678 
V.  Carron,  87  Amer.  Dec. 

408 609 

State  V.  Carter.  (1859)  29  N.  J.  L. 

499,  note  L.  R.  a  63 408 

State  V.  Cartwright,  20  W.  Va. 

32 628 

State  V.  Chandler,  5  La.  Ann.  489.  624 
V.  Chapin,  170  Arks.   565, 

506 48 

State  V.  <  hapin,  17  Arks.  561;  10 

Tex.  App.  6.55 208 

State  V.   Chisenhall,   106  N.   C. 

676 19 

State  V,  Chrisp,  85  N.  C.  528. ...  416 
V.  City  of  Camden,  56  N. 

J.  Law,  244;  28  Atl.  82 298 

State  V.  Clark,  37  Vt.   471 542 

V.  Clements,  32  Me.  279. . .  624 

V.  Cody,  60  N.  C.  197 312 

V.  Coggswell,  3  Blackf.  54.  295 
V.  Coleman,  5  Port.  (Ala.) 

32 318 

State  V.  Coombs,  47  Kan.  136. .. .  248 

V.  Cone,  86  Wis.  498 412 

V.  Cone,  57  N.  W.  50 144 

V.  Cowan,  29  N.  C.  239, 250.  313 

V.  Craton.  6  Ired.  164 349 

V.  Critchett.  1  Lea  (Tenn.) 

271,  3  Am.  Cr.  Rep.  83 297 

State  V.  Crockerham,  2  Ired.  204.  718 

V.  Cross,  27  Mo.  322 349 

V.  Croteau,  23  Vt.  14 538 

V.  Cucuel,  31  N.  J.  Law, 

249 531 

State  V.  Cummings,  33  Conn.  266.  376 
State  V.  Curtis,  1  Hayrt.  (N.  C.) 
471 575 


I 


^1 


XX 


AMERICAN  CRIMINAL  REDOUTS. 


PAOE 
State  V.  CunniiiKliain,  HO  Ind. 

209:  18  N.  K.  (iliJ ••• 

State  V.  Cutslu'll.  110  N.  C.  538; 

15  8.  E,  201 

State  V.  Dale,  !3  Wis.  795 

V.  Daiiic:  60    N.   H.  479; 

Am.  Cr.  K.  444 

State  V.  DaviH,  77  N.  C.  483 

V.  DavidHon.  30  Vt.  377... 
V.  Di'itrick,  51  Iowa,  407.. 


432 

407 
53 


239 
(to 
tUllt 
fil5 
318 


V.  District  Court,  41  Minn. 

42 223 

State  V.  Dixon,  93  N.  C.  850. . . .  150 
V.  Dixon,  75  N.  C.  275.  279.  330 
V.  Dominique,  30  Mo.  585.  390 
V.  Dotv.  32  N.  J.  Law,  403.  235 
V.  Douglas,  81  Mo.  231 .... 

316,  317,  318 
Drawdy,  14  Rich.  (S.  C.) 


Duncan.  6  Ired.  236..., 
Durien,  46  Kan.  095..., 

Earl.  41  Ind.  404 

EfiRlesht,  41  Iowa  574. , 

Ellis,  74  Mo.  215 

Elrod,  6  Ired,  250 

Emery,  65  V^t.  404 

Fasset,  16  Conn.  475 


5.50 
6(, 
235 
223 
653 
318 
58 
578 
424 


V 

87.., 
State  V, 

V 
V, 
V 
V 
V 
V. 
V. 

V,  Feasel,  74  Mo.  524 28 

V.  Fellows,  50  Wis.  65....  470 
V.  Fish,  27  N.  J.  Law  323.  70 
V.  Flanagan,  26  W.  Va.  116.  391 
V.  Flannigan,  67  Ind.  140.    77 

V.  Flvnn,36N.H.64 152 

V.  Folwell.  14  Kan.  105. . . .  3.57 
V.  Ford,  37 La.  Ann.  443,465,  5.56 
V.  Fooks.  56  Iowa  196.  452,  284 
V.  Forshner,  43  N.  H.  89. . .  347 
V.  Frazier  (Kans.)  39  Pac. 
819 

State  V.  Freeman,  63  Vt.  496. . . . 
V.  Freeman,  89  N.  C.  469. 
V.  Fula.son.  79  Me.  117:  7 
Am.  Cr.  Rep.  495,  note  497,  499.  436 

State  V.  Fuller.  IMcCord  L.  118  493 
V.    Galloway,     5    Coldw. 
(Tenn).  337 227 

State  V.  Garrand,  5  Or.  216 395 

V.  Gerrish,  78  Me.  20;  2  Atl. 
129 nm 

State  V.  Gibson,  111  Mo.  92 14, 17 

V.  Gibson,  108  Mo.  575 17 

V.Gilbert,  Id.  527 150 

V.  Glidden,  55  Conn.  46,  75; 
8  Atl.  890 

State  V.  Goldblot,  50  Mo.  Anp. 
186 . 

State  V.  Gonce,  79  Mo.  600 143 

V.  Goodrich,  84  Wis.  359. . .  476 
V.  Grady,  84  Mo.  224 13 


449 
541 
312 


187 
467 


State  V.  Grnff.  66  Iowa,  483; 

Am.  Cr.  Rep.  346 

State  V.  Graham.  38  Ark.  519 

V.    Grav,  8  Jones  (N.  C.) 

170, 
State 


5 

.  517 
.  505 


(Jreer,  22  W.  Va.  800. . . , 


650 
349 


(Jreen,  35  Conn.  203 383 


Grirtith.«7  Mo.  287 

(Jut.  13  Minn.  358 

Halford,  104  N.  C.  847., 
Hagernuui,  47  Iowa  151 , 


lU 
644 
313 
448 
291 


V, 
V 
V 
V 
V 

V.  Hag(K>d,  18  S.  C.  46.., 

V.  Hall,  114  N.  C.  909 407 

V.  Hall.  70  Iowa  85 517 

V.  Hall,  7Blackf.  25 425 

V.  Hanna,  84Ind.  183 428 

V.  Hannibal,  Id.  619 556 

V.  Harris.  106  N.  C.  682. 687.  318 
V.  Harrington,  12  Nev,  135.  605 
V.  Harrison,  93  N.  C.  605. 

156,  157 
Have.s,78  Mo.  807 668 


Havnes,  36  Vt.  667. 
Haynes,  71  N.  C.  79.... 

Hazard,  2  R.  I.  474 

Heatherton,  60  Iowa  175. 
Hennessey.  23  Ohio  St. 


540 

67 

345 

615 

339 ■ 653 

State  V.  Higgins,  32  Iowa  264. . .  24 

V.  Hill,  91  Mo.  427 620 

V.  Hilton,  35  Kan.  338;  Am. 

Cr.  Rep.  261 303 

State  V.  Hobgood  et  al.,  46  La. 

Ann.  855 313 

State  V.  Hodges.  45  Kan.  389. . .  112 

V.  Holly  way,  41  Iowa  200. .  605 

V.  Homer,  *48  Mo.  520 301 

V.  Hooker,  17  Vt.  6.58 340 

V.  Hopkins,  56  Vt.  203. .. .  541 

V.  Hopkins,  56  Vt.  260.  .240,  249 


V.  Hopper,  133  Ind.  460 
V.  Ho.smer,  58  Mo.  553. . . . 
V.  Houx,  109  Mo.  6.54;  Bish 

St.  Crimes  49;    Whart  Crim. 

Ed.  724 

State  V.  Howerton,  58  Mo.  581 . . 
V.  Hughes,  35  Kan.  626. . .. 
V.  Jackson,  2  Jones  (N.  C). 

247 

State  V.  Jacobs,  5  Jones  (N.  C  ), 

259 

State  V.  Jager,  66  Mo.  173 556 

V.  Jager,  19  Wis.  235 119 

V.  Jamison,  38  Minn.  21 . . .  15 
V.  Jamison,  74  Towa  617. . .  363 
V.  Jeandell,  5  Har.  (Del.), 

475 am 

State  V.  Johnson,  26  Iowa  413. . .  301 
V.  Johnson,  89  Iowa  594. . . 
V.  Johnson,  30  La.  Ann.  921 
V.  Johnson  (S.  C),  20  S.  E. 

998 ..... 


425 
556 


16 
510 
148 

650 

88 


586 
67 


586 


Statd 

20a 
Statd 

41 
Stutt 


2' 

Sta 


Sti 
Sti 


TABLE  OF  CASES  CITED. 


XXI 


PAGE 

State  V.  Jolinson,  67  N.  C.  55. . .    89 
V.  JolinHon,   85  Lu.   Ann. 
208 849,  858 

State  V,  Johnson.  91  Mo.  489 448 

V.  Johnson,  40  Conn.  136; 
41  Conn.  585 529,  584 

State  V.  Jones.  61  Mo.  233. .  ..849,  853 

V.  Jones,  88  N.  C.  605 44!) 

V.  Jones,  89  La.  Ann.  9!)6.  446 
V.   Keernan,   5    K.  L  497, 
510 77 

State  V.  Kenna.  68  Conn.  829 ... .  70 
V.  KinKsley,  108  Mo.  185. .  294 

V.  Kirhy,  2  Ired.  201 58 

V.  Kline,  54  Iowa  188 363 

V.  Knapp,  45N.  H.  148....  !M7 
V.  K»iight,  Tayl.  (N.  C.)  44 

44.  65 
V.  Lapage,  57  N.  H.  245. . .  263 

V.  Lavin.  80  Iowa  56  • 121 

V.  Lawrence,  52  Me.  577, 
581 642 

State  V.  Lee,  22  Minn.  409 620 

V.  Leiov,  126  Mo.  554 511 

V.  Lewis,  10  Kan.  157 436 

V.  Lincoln.  49  N.  H.  404. . . .  845 
V.  Livingston,  68  Mo.  App. 
445 487 

State  V.  Lock  wood,  43  Wis.  403. .  854 

V.  Logan,  1  Nev.  510 245 

V.  Loomis.  115  Mo.  307 292 

V.  Lyon,  12  Conn.  487 70 

V.  Mack,  41  La.  Ann.  1081.  289 

V.  Mack,  20  Or.  234 254 

V.  3Ialoney,  12  R.  I.  251. . . ,  845 

V.  Maloney,  105  Mo.  10 22 

V.  Manley,  107  Mo.  .364 253 

V.  Marler,  86  Am.  Dec.  407.  642 
V.  Matliews,  20  Mo.  55.  .349,  353 
V.  Matthews,  87  N.  H.  450. 

232,  235 

V.  May.  4  Dev.  328 67 

V.  McClintic,  73  Iowa  668..  116 

V.  McCoy,  52  Ohio  St 49 

V.  McCracken,  6  Am.  Cr.  R. 
209 454 

State  V.  McCune,  5  R.  I.  60. .  .510, 608 

V.  McDonald,  28  Vt.  491. .. .  540 

V.  McDonald,  9  W.  Va.  .4.56, 631 

V.  McGowan,  20  Conn.  245, 

246 70 

State  V.  Mcintosh  (S.  C),  18  S.  E. 
1088 6.50 

State  V.  McKean,  36  Iowa  343.. . .  158 
V.  McManus,  89  N.  C.  555.  157 
V.  Mcpherson,  9  Iowa  53.. .  127 
V.  Newherter,  46  Iowa  88. .  644 

V.  Meyer,  58  Vt.  457 541 

V.  Millard,  18  Vt.  574 864 

V,  Miller,  .53  Kan.  324 313 

V.  Miller,  .53  Iowa  156 556 

V.  Mitchell,  3  S.  D.  223.. . .  235 


PAOK 

State  V.  Moore,  1  Ind.  548 29(» 

V.  Morgan,  124  Mo.  467.. . .  486 
V.  Mowry,  87  Kan.  869. ...  641 
V.  Mueller   (Wise),   55  N. 
W.  165 449 

State  V.  Murphy,  16  R.  I.  .528... .  817 
V.  Mushiol.  12  Wis.  561 ....  119 

V.  New.  22  Minn.  76 259 

V.  Newton,  44  Iowa  45 16 

V.  Nichols,  1  Iloust,  Criin. 
Cas.  114 164 

State  V.  Nixon,  82  Kan.  205.  .641, 645 
V.  Noble,  118  Ind.   850;  21 
N.  E.  Rep.  244 503 

State  V.  Nolan,  111  Mo.  473.  .248,  207 
V.  O'Brien,  7  R.  L  837.. 406,484 
V.  O'Neil,  51  Kan.  651;  24 
L.  R.  A.  1.55 536 

State  V.  Owsley,  102  Mo.  678. .. .  668 
V.  Paddock,  34  Vt.  312. . . .  589 

V.  Paguls,  92  Mo.  300 641 

V.  Pardee,  87  Ohio  St.  66. .  4.59 
V.  Patrick,    107    Mo.    147, 
163-168 347 

State  V.  Patterson,  45  Vt.  316. ...  557 
V.  Payton,  9  Mo.   220;  2  S. 
W.  Rep.  294 406 

State  V.  Peace,  1  Jones  (N.  C.) 
251 5.56 

State  V.  Pearce,  56  Minn.  226. . .  49 
V.  People,  8  Colo.  457,  920.  349 
V.  People,  .53  N.  Y.  164... .  383 

V.  Perley,  86  Me.  427 603 

V.  Phillips  (Mo.  Sup.).  22  S. 
W.  Rep.  1079 317 

State  V.  Phinney.  42  Me.  390. .. .     58 

V.  Pierce,  8  Iowa  231 301 

V.  Poison,  29  Iowa  133 369 

V.  Pomeroy,  25  Kan.  349. .  896 
V.  Pratt,  98  Mo.  482. .  .247,  266 

V.  Priestly,  74  Mo.  24 668 

V.  Prizer,  49  Iowa  538 620 

V.   Raymond,  .58  N.  J.  L. 
260 356 

State  V.  Reeves,  8  Am.  Cr.  Rep. 
698.  p.  706 621 

State  V.  Reynolds,  108  Ind.  3.53; 
9N.  E.  287 433 

State  V.  Richardson,  117  Mo.  586.  28 
V.  Robin.son,40La.Ann.780.  6.58 
V.  Robinson,  79  Mo.  66. .  16,  628 
V.  Robinson.  20  W.  Va.  713.  647 
V.  Rollins,  8  N.  H.  550. ...  376 
V.  Rome,  64  Conn.  829. .. .  381 

V.  Ruhl,  8  Iowa  447 18 

V.  Sanborn,  104  Mass.  819, 
324 410 

State  V.  Saunders,  68  Iowa,  370.  863 
V.  Schnelle,  24  W.  Va.  767.  630 
V.  Schoenwald.  31  Mo.  147.  849 

V.  Scott,  64  N.  C.  586 673 

V.  Scruggs,  90  Tenn.  81 . . .     19 


i  J 


^i 


P 


xxu 


AMERICAN  CUIMINAL  UEPOUTS. 


PAOE 

Stiitov.   HclinlTiT.  81)  Mo.  27t;  fl 

Am.  Cr.  l{c|..  2:.l» •!•»« 

8tuU'  V.  Hliiiiii.  -.Vi  lowii,  88 W 

V.  Sli.'flfV.  ir)I()wii.  404...  !).VJ 

V.  shcitoii.  «4  iiiwii.  :t;t;j...  «.*)() 

V.  Sli.TMiaii,  Itl  U.  I.  031.  18 

Atl.  IDtil '!•.  !5:'<> 

Stuti'  V.  .SliciNvootl,  58  N.  W.  1)1 1 .  aoi 
V.  Sliippcy,    10  Minn.    ^-Jl) 

((»il.  178) «44 

Stutf  V.  Shrt-vcH. 81  Iowa.  015...  O.V) 

V.  Sims.  44  Tex.  .Wl 2.14 

V.  SlaiiKlittT,  TO  Mo.  484. . .  O.JU 
V.  Smiillt-y,    50     Vt.    TUO, 

749 344 

V.  Sinita.  il.j  Kaii.  018 07 

V.  Siiiitii.    .">    Uay    (t'onn.) 

175 113,05!! 

State  V.  Siiiitli,  33  JIo.  801) !170 

V.  .Smith.  l!lKan.21)(t 113 

V.  .Spcil.T.  80  N.C.  0i)7...  150 
V.  .Stacv.  103  Mo.  11:  15  S. 

W.  Rf|).  117 818 

Stiitt'  V.  .Sti'cii,  115  Mo.  474 10 

V.  Stewart,  51)  Vt.  373,  380; 

0  Atl.  5.-»)) 180 

State  V.  StL-wart  (Mo.)  29  S.  W. 

1)80 595 

State  V.  Stcmo,  100  Mo.  1 15 

V.  Stotts.  5  Blackf.  400. .. .  295 
V.  StraiKler,  11  W.  Va.  745.  031 
V.  Sumimma.  19 Ohio  139..  481 
V.  Syphrett.  37  S.  C.  29. . .  5.50 

V.  Taikett,  Id.  310 034 

V.  Thompson,  45  La.  Ann. 

970 034 

State  V.  Thompson,  19  Iowa,  399.  301 
V.  Timmins,  4  Minn.  325..  018 
V.  Tompkins,  33  La.  An  v 

023 259 

State  V.  T(K>le,  29  Conn.  342 70 

V.  Took',   100  N.  C.  736;  8 

Am.  Cr.  Rep.  608 4\^ 

State  V.  Tweadv,  5  Iowa,  433. . .  336 
V.  Umfried,  70  Mo.  404. ...  318 
V.  VanderiX)ol,  390.  St.  273  309 
V.  WaRner,  78  Mo.  044. .. .  309 
V.  Walters,  45  Iowa  389  . .  303 

V.  Ward,  6  N.  H.  .529 301 

V.  Watkins.  9  Conn.  47,  .54.  38;' 
V.  Weasel, 30 La.  Ann. 919..  306 
V.  Webber  (Minn.),  37  N.  W. 

949 223 

State  V.  Welrh,  21  Minn.  22 534 

V.  Welch.  0  Main 0 

V.  Wells,  1  N.  J.  L.  424...  624 
V.  Wentworth.37X.H.190.  3.57 

V.  Wenz.  41  Minn.  197 618 

V.  Wenzel,  37  Ind.  428 310 

V.  West,  40  La.  Ann.  1009.  239 
V.  Western,  N.  C.  K.  Co.,  89 
N.C.  584 374 


PAOE 
state  V.  Westfall.   40    In.  828;  8 

Am.  (V.   Rep.  343 887 

.Stiite  V.  \Vi!kins(m,  121  Mo.  485.  28 
V.  Wiikinscm,  3  Vt.  480. . .  688 
V.  Williams,  3  Hill  (8.  C.) 

94 48 

State  V,  Williams,  35  Mo.  App. 

541 699 

State  V.  Witt.  39  Arks.  216 595 

V.  Wolff,  34  La  Ann.  1153. 

245,  247 

V.  Wood.  17  Iowa,  18 849 

V.  WoodHn.  87  N.  C.  .536. .   156 
V.  Woodward.  23  Vt.  27. . .  538 

V.  Wrigiit.  53  Me.  328 5.55 

V.  Wvso,  33S.(^.  .594 6.50 

V.  Yarhrou^'h.  1  Hawks.  78.  634 
V.  Zabriskie,  43  N.  J.  Law, 

309 618 

State  V.  Zimmerman.  47  Id.  212.   113 
V.  Zetler,  35  Minn.  238  ... .   121 
Steamboat  Co.  v.   Brockett,   121 

U.S.  637 454 

Stt'd^er  V.   State,  99  Am.   Dec. 

472 595 

Stephens   v.    People,    4    Parker 

Crim.  R.  396;  Id.,  19  N.  Y  .549.  849 
Sterling  v.  Drake,   69  Ohio  St. 

4.57 .503 

Stettinius   v.  U.  S.,  5  C'ranch  C. 

C.  573 .5.56 

Stewart  v.  State,  1  Ohio  St.  66. . .   634 
V.  State.  15  Ohio  St.  1.55.  351 

Stipp  V.  State.  11  Ind.  63 317 

Stockwell  V.   State,  27  Ohio  St. 

503 205 

Stoekton  v.  Bishoi»,  2  How.  74.  95,  96 
Stone  V.  Sanborn,  104  Mass.   819, 

334 410 

Storey  v.  People,  79  III.  45 223 

Storrs  V.  Stat.'.  3  Mo.  9 344 

Strieklett  v.  State,  31  Neb.  674. .  255 
Strong  V.  State,  44  Anier.  Rep. 

299 !.  356 

Stuart  V.  People,   3  Scam.  (111.) 

395 223 

Stultz  V.  Dickey,  5  Binn.  289;  6 

Am.  Dec.  411 875 

Suddulh  V.  State,  70  Miss.  2.50. . .  156 
Sugg  V.  Pool,  2  Stew.  &  P.  196. .  60 
Sullivan's  Case,   67  Miss.  351;  7 

South.  275 607 

Sullivan  v.  State,  5  Stew.  &  P. 

1^5 70 

Sup.  Ct.  of  the  United  States,  ex 
jMirte  Wilson,   114  U.   S.  417- 

•429 438 

Staegerv.  Com.,  103  Pa.  St.  499, 

472 :  345 

Steamship  Co.  v.  McKenna,   80 
Fed.  48 187 


TABLE  OF  CASES  CITED. 


X.XllI 


, 


$ 


PAOE 

Stovens  v.  Stnto,  66  Md.   203;  7 

Atl.  U.-p.  854 847 

Htcv.'HH  V.  Stiite,  81  Ind.  485 043 

bttivick  V.  rom..   7«  Pu.  St.  400, 

408:  1  Bwh.  Criin.   Proc,  pur. 

lOH-213 847 

Htohle  V.  Com,,  05  Pa.  818 008 

Mutton  V.  Htiitf,  «  Ohio,  188 137 

Swi'ih-n  V.  Htiitf,  19  Ark.  305. ...  849 

Hwfn«'V  V.  Stat»>,  85  ArkH.  585. . .  rM 

Sylvester  V.  State,  05  N.  H.  198.  443 

V.  State,  71  Ala.  17.810,  8.58 

V.  State,  1  Am.  Cr.  R. 

850:  43  Tex.  490 289 

Sylvester  v.  State,  43  Tex.  490:  1 

'Am.  Cr.  R.  850 280 

T 

Taflfe  V.  State.  39  Conn.  82 72 

V.  Kiiie,  9  Mo.  Ann.  15....  78 
TalnuiKe  v.  Smitli.  101  Mich.  730.    80 

Tate  V.  State.  5  Blackf.  73 538 

Taylor  v.  Cumberland.  04  Md.  58..  416 
E.V  iMtite  M?Uvaukeo  R.  R. 

Co..  5  Wall.  188 103 

Tavlor  v.  Mottitt,  2  Blackf.  (Ind.) 

305 2i?3 

Taylor  v.  State.  50  Ga.  79 448 

V.  Strong.  8  Wend.  384. .     55 

Teller  v.  Peoiile.  7  Colo.45l 280 

Teniiy  v.  Harvey.  08  Vt.  530. . . .  537 
Territory  v.  Guvatt.  9  Mont.  40. .  188 
V.Stone,  2  Dak.  155...  339 
Terrv  v.   State,   90  Ala.    635,   8 

South.  004 1.50 

The  Antelope.  10  Wiieat.  60-333.  407 
The  Lottawanna,  31  Wall.  5.58, 

.570.  579 97 

The  Queen  v.  Tolson,  8  Am.  Cr. 

R.  .59 144 

The  St.  Lawrence,  1  Black.  533, 

530 97 

Thoniiw  V.  People.  07  lb.  218. .. .  67 
V.  People,  14  Colo.  2.54. .  239 
V.  State.  103  Ind.  419. . .  363 

Thorpe's  Case.  Id.  396 490 

Thompson's  Case,  3  Va.  Cas.  479..  638 
Thompson's  Case,  8  Grat.  637...  638 

Tift  V.  Town.  63  Ga.  337 158 

Timothy  v.  Simpson,  1  Comp.  M. 

&  R.7.57 53 

Tingle  v.  Com.  (Ky.),  11  S.W.  812.  336 
Titus  V.  State.  49  N.  J.  Law  36. .  531 
Toledo.  A.  A.  &  N.  M.  Ry.  Co.,  v. 

Pennsylvania  Co.,  54  Fed.  730, 

740 180 

Toledo  &  Wabash  R.  R.  Co.  v. 

Goddard.  25  Ind.  185-191 454 

Tom  Tons  E.e  parte,  108  U.  S.  556.  71 6 
Townsend's  Case,  1  Plow  111. . . .  548 


PAGE 
Traux  v.  Com.  (Ky.  Sunr.  Ct.), 

14  Ky.  L.  Rep.  399 l.W 

Trumbull  v.  Territory,  8    Wyo. 

380 888 

Tufte  V.  Town  of  Chester,  62  Vt. 

856 537 

Turnpike  Co.  v.  Heil,  118  Ind.  185.  484 
Tyler  v.  People,  8  Mich.  826 407 

u 

United      States     v.     Anthony, 

Blackf.   304 5.50 

United  States  V.  Battiste,  3  Sunm. 

248 550 

United  States  V.  Bicksler,  1  Mack- 

ey  341 864 

Uniti'd  States  v.  Britton,  108  U. 

S.  199,  204 108.  343,  876 

Uniteil  States  V.  Britton,  107  U. 

S.  6.55 070 

United  States  v.  Britton,  108  U. 

S.  193 674 

United  States  v.  Carll,  105  U.  S. 

Oil 009 

United  States  v.  Chicago.  7  How. 

185 475 

United  States  v.  Clark,  40  Fed. 

633 133 

United  States  v.  Clark,  3  Cranch, 

C.  C.  158 535 

United  States  v.  Cook,  17  Wall. 

173 073 

United  States  v.  (.Iruikshank,  93 

U.  S.  .543,  5.58 669 

United  States  v.  Daniel,  6  Wheat. 

543 475 

United  States  v.  Dewalt,  138  U. 

S.  393 439 

United  States  v.  Drew,  5  Mason, 

28;  1  Lead.  Crim.  l  Jis.  (2d  Ed.) 

131 534 

United  States  v.  Eaton,  144  U.  S. 

677 376 

United    States    v.    Fenwick,  4 

Cranch,  C.  C.  675 556 

United    States  v.    Gooding    12 

Wheat.  472 245 

United  States  v.  Greathouse,  14 

Sawy.  4.57 556 

United  States  v.  Greiner,  4  Phila. 

396 522 

United    States    v.    Guiteau.   47 

Am.  Rep.  247 408 

United     States     v.    Gurney,    4 

Cranch  333 475 

United  States  v.  Hart,  8  Wheel- 
er, Cr.  Cas.  304 78 

United  States  v.  Hess,  124  U.  S. 

483 109 

United  States  v.  Hess,  124  U.  S. 

483 670 


ni  ? 


9 

|9BB!S 


XXIV 


AMERICAN  CRIMINAL  REPORTS. 

PAGE 


United  Stiitos  v.  Holmes,  1  Clif. 

98 •••••  »^0 

United  StatoR  v.  IIiulBon,  1 1 U.  S; 

7Cranch  S2 oiH 

United  States  v.  Jones,  3  Wash. 

C.  C.  209:   Fed.  Case,  No.  15, 

494 594 

United  States,  v.  Kagania,  118 

U.  S.  375 13o 

United  States  v.  Kane,  23  Fed. 

748 183 

United  States  v.  Knight,  14  Pet. . 

301 9'> 

United  States  v.  Lawrence,   13 

Blatehf.  a»5 309 

United  States  v.  Lyles,  4  (ranch 

C.  C.  469 668 

United  States  v.  McGlue,  1  Curt. 

9 641 

United   States  v.  Mills,  7  Pet. 

138 669 

United  States  v.  Morris,  1  Curt. 

C.  C.  53 551,  555 

United   States  v.    Neverson,    1 

Mackey.  152 364 

United  States  v.  Northway,  120 

U.S.  327 670 

United  States  v.  Perez,  9  Wlieat. 

580 606 

United  States  v .  Perez,  9  Wheat. 

579 212 

United  States  v.  Randenbush,  8 

Pet.  288 475 

United  States  v.  Rauseher,  119 

U.  S,  407;  7  Sup.  Ct.  234 306 

United  States  v.  Riley.  5  Blatehf. 

204 556 

United  States  v.  Rundlett,  2  Curt. 

41 95 

United  States  v.  Shive,  1  Baldw. 

512 556 

United  States  v.  Simmons,  96  U. 

S  360 670 

United  States  v.   Simmons,  47 

Fed.  723 107 

Uniced  States  v.  Staats,  8  How. 

41 340 

United  States  v.  Sykes,  (D.   C. 

W.   D.  N.  C),    58    Fed.  Rep. 

1,000 578 

United  States  v.  Walsh,  5  Dill. 

58 342 

United    States    v.    Watkins,    3 

Cranch,  C.  C.  443,  Fed.  Cas., 

No.  17,649 687 

United  States  v.  Watts,  8  Sawy. 

370,  14  Fed.  130 306 

United  States  v.  Whittberger,  5 

Wheat.  76 ....    475 

United   States  v.    Whittier,    11 


Bias.  356;  13  Fed.  534. 


99 


PAGE 
United  States  v.  Wilson,  32  U.  S.; 

7  Pet.  157 493 

United  States  v.  Wood,  14  Pet. 

430 436 


Vance,  Ex  parte,  90  Cal.  208. .. ,  718 

Vanderlip  V.  Roe,  23  Pa.  St.  8'?. .  6.58 

Van  Etten  v.  Butt.  32  Neh.  2^5. .  467 

Veazie  v.  Wiidii-igh,  11  Pet.  55. .  475 
Vickslmrg  &  Meridian  R.  R.  v. 

O'Brien,  119  U.  S.  99 454 

Vilas  V.  Burton,  27  Vt.  56 227 

Virginia  v.  Paul.  148  U.  S.  107, 

123,  124;  13  Sup.  Ct.  530 102 

w 

Wagoner  v.  State,  5  Loa.  352. . .  445 

Wahl  V.  Walton,  30  Minn.  506. .  54 
Walker  v.  Brewster,  L.  R.  5  Eq, 

25 416 

Walker  v.  Cronin,  107  Mass.  555. .  183 
V.   State,    6   Tex.    App. 

576 66 

Wall  V.  State,  51  Ind.  4.53,  454. . .  345 

Walling  V.  Potter,  35  Conn.  1H3. .  146 
Wallis  V.  State  (Arks.),  16  S.  821 . . 

259.  574,  361 

Walls  V.  State,  32  Ark.  503 141 

Wallv'sHeii-sv.  Kennedj-,  2  Yerg. 

554 291 

Ward  V.  Chamberlain,  2  Black 

430,430 95 

Warner  v.  State,  114  Ind.  137. . .  81 
Warren  v.  State,    9  Tex.    App. 

619 396 

Washington  v.   State,    63   Ala. 

135 rm 

Wassum  v.  Feenev,  121  Mass.  93..  409 
Watson  V.    State',   9  Tex.    App. 

237 .:.  49 

Watson  V.  ^'tate,  82  Ala.  10 322 

V.  tjutherland,   5  Wall. 

74,79 104 

Wattingham  v.  State,  5  Sneed, 

64 72 

Wayman  v.  Southard,  10  Wheat. 

1,  27-29 95 

Weaver  v.  People.  33  Mich.  297. .  442 

Wei)b  V.  State,  51  N.  J.  L.  189.. ,  56 

Webber  v.  Com.,  119  I'a.  St.  223.  633 

Weeks  v.  Jlcdler.  20  Kan.  57. ...  352 

Welch  V.  Barber,  52  Conn.  147..  230 

Wells,  Expurte,  18  How.  307. . .  443 

West  V.  State,  73  Ala.  533 511 

V,  State,  1  Wis.  192 610 

V.  State,  1  Wis.  217 620 

V.  State,  1  Wis.  209 618 

Whijiple  Ca.se,  9  Cowan  715 504 

White  V.  Kent,  II  Ohio  St.  550. .  52 


^J 


TABLE  OF  CASES  CITED. 


XXV 


PAOE 

White  V.  State,  49  Ala.  344 148 

V.  State,  53  Ind.  595 605 

V.  Turk,  12  Pet.  238 475 

Wliitehead  v.  Reg.,  7  Q.  B.  582. .     72 
Wiggins   V.    Railroad   Co.,    120 

Mass.  201 410 

WiU-ox  V.  Nolze,  34  Ohio  St.  520.  717 
Williehn  v.  People,  72  111.  468. ..  631 
Wilkerson  v.  Com.,  88  Ky.  29. . .  21 
V.  State,  91  Ga.  729. .  397 
Wihner  v.  Albaugh,   (Iowa),   42 

N.W.  587 658 

Wilson  V.  State,  27  Tex.  App.  47..  436 
V.  State,  67  Ga.  660,  661 . .   158 
V.  Territory,  1  Wyo.  155, .  232 
Williams  v.   State,   5  Am.   Cr. 

Rep.  612 448 

Williams  V.  State,  61  Wis.  292..  369 
V.  State,  8  Hump.  585 . . 

357,  362 
V.  State,  10  Tex.  App. 

8 510 

Williams  v.  State,  44  Ala.  24. . . .  143 
V.  State,  18  Ohio  St. 

46 653,  713 

Williams  v.  State,  14  Ohio  222. . 

445,  659 
V.  State,  32  Miss.  389. .  556 
V.   Tidball,    (Ariz.),    8 

P.1C.  3.51 62 

Willinghornv.  State,  32  Tex.  Cr. 
R.... 49 


PAGE 
Willinks   v.    Hollingsworth,     6 

Wheat.  240 475 

Willis  V.  People,  32  N.  Y.  715. .  644 
V.  State,32  Texas.Cr.  R.  534  70 
Willow  V.  Berkley,  1  Plow.  223. .  548 
Winkelman  v.  People.  50  111.  449.  223 
Wintringham  v.   Lafoy,  7  Cow. 

735 , 567 

Winslow  V.  State.  76  Ala.  42.  .65,  391 
Wolf  V.  State,  19  Ohio  St.  248. .     52 

Wood,  In  re,  140  U.  S.  278 .501) 

V.  State,  47  Arks.  492. .. .  245 

V.  U.  S..  16  Pet.  342 356 

Woodbury  v.  Bowman,   13  Cal. 

534 144 

Woodbury  v.  State,  69  Ala.  242. .  284 
Woodford  v.   State,   1   Ohio  St. 

427 653 

Woodgatt  V  Connell.  38  111.  418..  7 
Wormley's  Case,  8  Gratt.  712. . .  628 
Wright  V.    State,   31  Tex.    Cr. 

App.  354 622 

Wright  V.  State,  7  Tex.  App.  574.  153 

V.  State,  9  Yerg.  342 67 

Wyatt  V.  People,  17  Col  252.. 223,  229 

Y 

Yates  V.  People,  6  Johns.  (N.  Y). 

337 223 

Young  V.  King,  3  Term  R.  98 346 

Younghlood  v.   Savings  Co.,  95 

Ala.  521 292 


T 


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AMERICAN 


CRIMINAL  REPOBTS. 


Commonwealth  v.  IIasi. 

(156  Mass.  483.) 
Abandonment  of  Wife:  Failure  to  support — Evidence— Inslructiona. 

1.  In  a  prosecution  against  a  husband  for  neglecting  to  support  his  wife, 

he  introduced  evidence  of  misconduct,  charging  her  with  breaches  of 
her  marriage  duty,  and  with  having  declared  that  she  would  not  live 
with  him.  In  rebuttal  his  charges  were  contradicted,  and  two  decrees 
put  in  evidence;  the  firet  was  a  decree  of  the  probate  court  on  petition 
of  the  wife  for  separate  maintenance,  and  the  other  a  decree  dismiss- 
ing his  libel  for  divorce  on  the  grounds  of  drunkenness  and  cruelty: 
Held,  that  they  were  properly  admitted  aa  tending  to  explain  her  con- 
duct. 

2.  Defendant  requested  an  instruction  that  to  justify  his  neglect  his  wife's 

habits  of  intoxication  need  not  be  so  gross  as  to  entitle  him  to  a  divorce, 
and  a  similar  one  as  to  her  alleged  cruel  treatment.  The  court  charged 
that  the  jury  had  a  right  to  consider  such  facts  as  they  might  And,  but 
refused  the  instruction  asked  as  matter  of  law  :  Held,  that  the  charge 
was  sufficiently  favorable  to  defendant,  and  the  question  was  properly 
left  to  the  jury. 

Exceptions  from  Superior  Court,  Middlesex  County;  John 
Hopkins,  Judge. 

Prosecution  against  Foster  Ham  for  unreasonably  neglect- 
ing to  provide  for  the  support  of  his  wife.  Verdict  of  guilty, 
and  defendant  excepts. 


if ', 


^      4 


'H 


il 


G.  C.  Travis,  Asst.  Atty.  Gen.,  for  the  Commonwealth. 
C.  Cuidey,  for  defendant. 

Holmes,  J.    This  is  a  complaint  under  chapter  176  of  the 
St.  of  18S5,  charging  the  defendant  with  unreasonably  neg- 

(1) 


4 


'f 


\H     '<• 


I  I 


2  AMERICAN  CRIMINAL  REPORTS. 

lecting  to  provide  for  the  support  of  his  wife.  He  set  up  that 
his  neglect  to  do  so  was  not  unreasonable  in  view  of  her  con- 
duct, and  charged  her  with  various  breaches  of  her  marriage 
duty,  and  with  having  declared  that  she  would  not  live  with 
him.  In  rebuttal  the  defendant's  charges  were  contradicted, 
and  two  records  also  were  put  in,  subject  to  the  defendant's 
exceptions.  The  first  of  these  was  a  decree  of  the  probate 
court,  upon  a  petition  by  the  wife  for  separate  maintenance, 
declaring  that  the  wife  was  living  apart  from  the  defendant 
for  justifiable  cause,  and  ordering  him  to  pay  her  $16  a  month, 
The  second  was  a  libel  by  the  husband  for  divorce  on  the 
grounds  of  drunkenness  and  cruelty,  and  a  decree  dismissing 
the  same  after  hearing.  There  is  nothing  to  show  that  these 
records  were  let  in  as  evidence  of  the  facts  decided,  as  tending 
to  prove  that  the  defendant's  wife  was  living  apart  from  him 
for  justifiable  cause,  or  that  she  had  not  been  guilty  of  cruelty, 
and  had  not  gross  and  confirmed  habits  of  intoxication.  But 
with  regard  to  what  is  called  in  BriyJuim  v.  Faijerweather,  140 
Mass.  411,  413,  5  N.  E.  Eep.  265,  the  "legislative  effect"  of 
the  decree  in  the  former  case,  in  so  far,  that  is,  as  the  decree 
created  an  obligation  on  the  defendant  to  pay  his  wife  $16  a 
month,  it  would  be  impossible  to  say  that  it  had  no  bearing 
on  the  question  whether  he  was  reasonable  in  refusing  to  pay 
her  anything,  notwithstanding  the  fact  that  it  was  res  inter 
alios. 

The  ground,  however,  on  which  both  decrees  were  admitted, 
was  a  broader  one,  no  doubt.  The  defendant  took  the  posi- 
tion that  less  than  sufficient  to  entitle  him  to  a  divorce  would 
justify  him  in  refusing  to  support  his  wife,  and  Avent  into  evi- 
dence  of  her  conduct  generally.  The  decrees  were  facts  bear- 
ing on  the  same  subject,  and  tending  to  explain  her  conduct, 
and  therefore  were,  admissible  in  rebuttal.  The  alleged  dec- 
laration of  the  wife,  for  instance,  that  she  would  not  live 
with  the  defendant,  assumed  a  different  color  if  made  after 
the  two  proceedings,  the  records  of  which  were  introduced. 
The  evidence  was  admissible  for  the  purpose  explained. 

The  defendant  asked  an  instruction  that  to  justify  his  neg- 
lect his  wife's  habits  of  intoxication  need  not  be  so  gross  or  so 
confirmed  as  to  entitle  him  to  a  divorce,  and  a  similar  one  as 
to  her  alleged  cruel  and  abusive  treatment.  The  iudge  left 
the  question  to  the  jury  at  large,  saying  that  they  had  a  right 


COMMONWEALTH  v.  HAM. 


3 


to  consider  such  facts  as  they  might  find,  but  that  he  could 
not  say  as  matter  of  law  that  the  habits  need  not  be  so  gross, 
or  the  cruel  treatment  of  such  a  degree,  as  to  entitle  him  to  a 
divorce.  The  plain  meaning  of  the  charge  was  to  leave  the 
whole  matter  to  the  jury.  If  they  thought,  under  the  cir- 
cumstances of  the  case,  which  had  been  detailed  to  them,  that 
the  defendant  would  not  have  been  justified  in  neglecting  to 
support  his  wife  by  less  than  a  good  cause  for  divorce,  they 
were  at  liberty  to  find  so.  They  were  equally  at  liberty  to 
find  that  the  defendant  was  justified  by  much  less  than  what 
would  have  amounted  to  a  cause  of  divorce.  It  'is  enough 
to  say  that  so  far  as  appears  this  was  sufficiently  favor- 
able for  the  defendant.  If  it  ever  be  true  that  an  off'ense 
short  of  a  cause  for  divorce  will  justify  a  husband  as  against 
the  commonwealth  in  neglecting  to  support  his  wife,  whether 
in  a  particiUar  case  cruelty  or  intoxication  falling  short 
of  that  will  be  enough,  must  depend  on  the  circumstances. 
There  is  no  universal  proposition  that  can  be  laid  down  with 
any  advantage.    Exceptions  overruled. 

Note. — Is  the  wife,  of  a  pernon  aeeiiseda  competent  witnens. — This  ques- 
tion came  up,  before  the  writer,  on  habeas  corpus,  while  presiding  in  tlie 
Criminal  Court  of  Cook  County,  and  he  was  then,  as  now,  of  opinion  that 
a  wife  is  a  competent  witness  against  her  husband,  under  the  statute  of  the 
State  of  Illinois,  of  1893,  entitled  "  An  act  to  prevent  and  punish  abandon- 
ment of  wife  or  cluldren  by  husband,"  the  first  section  of  which  provides, 
"That  every  husband  be  deemed  guilty  of  a  misdemeanor,  who  shall, 
without  good  cause,  abandon  his  wife  and  neglect  and  refuse  to  maintain 
and  provide  for  her,  or  who  shall  abandon  his  children  under  the  age  of 
twelve  years,  and  wilfully  neglect  or  refuse  to  maintain  and  provide  for 
such  child  or  children."  Section  two  provides  that  ever  husband  who 
shall  be  guilty  of  all  or  any  one  of  the  misdemeanors  speciitd  in  this  act, 
shall  be  indicted  and  tried,  and  on  conviction  thereof,  shall  be  punished  by 
rtne  not  less  than  one  hundred  dollars,  nor  more  than  five  hundred  dollars, 
(»rby  imprisonment  in  the  county  jail,  house  of  correction  or  workhouse 
not  less  than  one  month,  nor  more  than  twelve  months,  or  by  both  such 
fine  and  imprisonment.  Section  three  provides  that  no  other  evidence  shall 
be  refjuired  to  prove  that  such  husband  was  married  to  such  wife,  or  that 
he  is  the  lawful  father  of  such  child  or  children,  than  is  or  shall  be  recjuired 
to  prove  such  f.act  or  facts  in  a  civil  action.  The  prosecution  in  the  case 
was  instituted  by  the  wife,  and  upon  her  testimony  given  before  the  grand 
jury,  the  defendant  was  indicted,  and  his  attorney  moved  to  quash  the 
indictment  for  the  reason  that  the  wife  was  not  permitted  to  institute  a 
criminal  complaint  or  to  be  a  witness  against  her  husband  in  a  criminal 
proceeding,  except  when  he  is  charged  with  committing  or  threatening  to 
inflict  ginevous  injury  to  her  person. 


I 


1 1 
-if 

m 

.lit, 

't  r 


Mi- 


I 


;  m 


4  AMERICAN  CRIMINAL  REPORTS. 

The  rule  at  common  law  is  well  settled  that  tlie  wife  can  not  be  a  witnc';>s 
against  her  Imshaml.  The  exceptions  to  this  rule  are  also  clearly  defined. 
According  to  Blackstone.  "  where  the  otrense  is  directly  against  the  person 
of  the  wife,  this  rule  has  been  usually  dispensed  with."  1  Blackst.  Com. 
443.  According  to  other  text  writci-s  the  exceptions  are  founded  on  evi- 
dent necessity,  where  the  fact  is  presumed  to  be  exclusively  within  the 
knowledge  of  the  wife.    2  Stark.  Ev.  713;  1  Phil.  Ev.  169. 

A  case  in  which  the  conunonlaw  rule,  with  its  exceptions,  is  discussed, 
and  the  cases  hearing  upon  it  cited,  is  that  of  People  v.  Carpenter,  9  Barb. 
580.  The  facts  in  that  case  were:  The  prisoner  was  indicted  for  suborna- 
tion of  perjury  m  procuring  one  Frederick  A.  Wood  falsely  to  swear  to  an 
affidavit  of  the  service  uiwn  the  prisoner's  wife  of  a  subpcena  to  appear 
and  answer,  in  a  suit  in  chancery  connnenced  by  the  prisoner  against  her 
for  a  divorce,  on  the  ground  of  adultery,  in  order  that  he  might  obtain  a 
decree  against  her  by  default.  On  the  trial  the  counsel  for  the  people  called 
as  a  witness  Mary  S.  Carpenter,  who,  it  was  admitted,  was  the  wife  of  the 
prisoner.  The  counsel  for  the  prisoner  objected  to  her  being  sworn  as  a 
witness  on  the  ground  that  she  was  the  prisoner's  wife,  but  the  court  over- 
ruled the  objection,  and  decided  that  she  was  admissible  as  a  witness  for 
the  purpose  of  proving  the  alleged  perjury.  The  counsel  for  the  prisoner 
excepted  and  the  wife  was  examined  as  a  witness.  The  jury  found  de- 
fendant guilty,  ana  upon  a  bill  of  exceptions  for  a  new  trial,  the  court  say: 

"  In  Lord  Audley's  case,  the  question  was  submitted  by  the  attornej'  gen- 
eral, to  the  Judges,  whether  the  wife  might  be  a  witness  against  her  hus- 
band, to  prove  the  commission  of  a  rape  ujwn  her  person;  and  they 
answered  '  she  might; '  for  she  was  the  party  wronged;  otherwise  sheniight 
be  abused.  Again  in  the  progress  of  the  trial.  Lord  Audley  '  desired  to  be 
resolved  whether  his  wife  is  to  be  allowed  a  competent  witness  or  not.'  The 
Judges  resolved  that  in  civil  cases  the  wife  may  not;  but  in  a  criminal  cuse 
of  this  nature  where  the  wife  is  the  party  grieved,  and  on  whom  the  crime 
is  conunitt.'d,  she  is  to  be  admitted  as  a  witness  against  her  husband."  3 
How.  State  Tr.  401.  Although  this  trial  took  place  more  than  two  centu- 
ries ago,  the  law  as  then  laid  down  remains  undisturbed  at  this  day.  It  is 
true  that  the  subsequent  decisions  have  deviated  in  various  respects,  some 
of  the  Judges  being  inclined  to  enlarge,  and  others  to  restrict  the  excep- 
tions; but  the  English  Courts  have  always  returned  to  the  d(x;trine  of  Lord 
Audley's  case,  which  is  now  said  to  b.-  estal)lished  by  the  highest  author- 
ities. 2  Russ.,  Crimes,  p-c  '  in  a  case  of  murder,  as.sault  and  battery, 
andbreachof  thepeitc  lu  ,.■:  '...  „  !n  t.i  p.dmitted  as  a  witness  against  her 
husband.    Ayres'C;-  )   C'Vd.   •       whouse's  Case;  2  Russ.,  Crimes,  600; 

Bull.  N.  P.  287. 

"  But  the  counsel  for  ihi^  |,  aji*  ;\.i  ad  for  a  much  broader  exception: 
one  that  will  embrace  all  cases  of  seticl  injuries.  To  support  this  doctrine 
tliey  rely,  in  part  at  least,  upon  the  case  of  Hex  v.  Wakefield,  (cited  2  Rus- 
si'll.  Crimes,  606),  where,  on  an  indictment  for  a  conspiracy  in  unlawfully 
taking  Ellen  Turner  and  procuring  her  to  be  married,  Pollock,  B.,  received 
the  evidence  of  the  wife,  as  being  admissible  on  the  ground  of  necessity, 
even  supposing  that  the  marriage  was  valid.  The  ruling  was  at  the  Lan- 
caster Assizes  in  1827,  and  can  hardly  be  deemed  an  authority  for  introduc- 
ing'a  new  rule.  That  the  evidence  was  pro[)erly  received,  upon  the  gi-ound 
that  the  marriage  itself  was  illegal  and  invalid,  is  highly  probable;  but  that 


"^ 


COMMONWEALTH  v. 

t 


HAM. 


the  reason  nss/flfiicf I  for  its  reception  is  a  sound  one  is  by  no  r  /ans  true. 
For  if  tlie  n>arriage  were  valid,  there  could  not  be  any  reason  of  necessity 
for  the  wife  to  be  a  witness  against  her  luisband.  If  neither  force  nor 
fraud  were  used,  then  no  such  personal  injury  was  done  to  lier,  as  could 
warrant  the  wife's  appearing  as  a  witness  for  her  own  protection.  If  either 
irvve  used,  then  it  wafl  at  least  doubtful  whether  she  teas  a  irife,  and  Wake- 
field could  not  be  permitted  to  take  advantage  of  his  own  wrong,  bj'  setting 
up  his  own  violent  or  fraudulent  act,  as  the  ground  for  excluding  theprin- 
t;ipal  witness,  under  pretense  that  she  had  thus  become  his  lawful  wife. 
The  same  remarks  are  applicable  to  the  case  of  Rex  v.  Perry,  cited  by  the 
leurned  judge. 

"  The  case  of  King  v.  Buck  north,  cited  from  Z  Keb.  403,  does  not  sustain 
the  position  contended  for.  That  case  is  very  imperfectly  reported,  and 
entitled  to  but  little  consideration.  It  ajjpearsto  have  been  an  information 
for  perjury  against  Bucknorth  and  Tuukey,  on  the  trial  of  which  two  of 
the  judges,  Keeling  and  Moreton,  held  that  the  husband  of  one  of  the  de- 
fendants, Tuckey,  '  might  be  admitted  to  prove  the  issue  whether  the  child 
were  feigned,  albeit  not  tojirove  his  wife's  subornation  of  the  other  defend- 
ant, B.,  who  acted  as  midwife  in  this  deception.' 

"The  American  authorities  do  not  countenance  Wakefield's  case,  nor 
Perry's  case;  nor  do  I  find  anything  in  our  reports  to  sustain  the  doctrine 
so  ably  but  unsuccessfully  maintained  by  the  counsel  for  the  people.  In 
Kent's  Commentaries  the  law  is  thus  expressed  :  '  The  husband  and  wife 
can  not  be  witnesses  for  or  against  each  other.'  This  is  a  settled  principle 
of  law  and  equity,  and  it  is  founded  as  well  on  the  interest  of  the  parties 
being  the  same,  as  on  pul)lic  jjolicy.  The  foundations  of  society  would  he 
sh.aken,  according  to  the  strong  language  in  one  of  the  cases,  by  permitting 
it.  Nor  can  either  of  them  be  permitted  to  give  .any  testimony,  either  in  a 
civil  or  criminal  case,  which  goes  to  criminate  the  other;  and  this  rule  is  so 
inviolable  that  no  consent  will  authorize  the  breach  of  it.     2  Kent,  178. 

"  Thf're  is  no  reported  case  in  this  state  in  whicli  the  wife  has  been  ad- 
mitted as  a  witness  against  her  husband.  The  cases  cited  do  not  sustain 
the  conclusions  attempted  to  be  drawn.  In  the  case  of  Ratcliffe  i\  Wales, 
1  Hill,  68,  the  wife  wius  not  called  against  but  bij  her  former  husband  after 
a  divorce.  In  Batwock  v.  Booth,  2  Hill.  181,  the  widow  of  the  deceased 
intestate  was  called  as  a  witness  against  his  administrator  in  a  civil  action, 
and  the  court  held  that  she  was  improperly  admitted  to  disclose  observa- 
tions made  to  her  by  her  husband  concerning  his  affairs,  although  she 
might  have  been  called  to  prove  facts  which  she  did  not  learn  from  him. 
In  The  People  V.  Vhagary,  IS  Wend.  tt37,  Bronson,  J.,  said:  'There  is 
room  for  doubt  whether  the  testimony  of  the  wife  should  in  any  case  be 
received  against  the  husband,  except  when  she  complains  of  personal  vio- 
lence or  ill  treatment  of  herself,'  Now  in  the  case  at  bar,  there  is  no  com- 
plaint of  injury  to  the  person  of  the  wife.  It  is  claimed  merely,  that  the 
l)risoner  was  endeavoring  to  injijre  lier  in  her  marriage  relations,  He 
sought  to  obtain  a  fraudulent  divorce  by  suborning  Wood  to  swear  to  an 
aftidavit  of  the  service  of  a  subpoena  to  appear  and  answer,  upon  which  he 
could  obtain  adecrea  by  default  agiinst  har.  In  other  words,  the  husband 
is  charged  with  using  criminal  means  to  wrong  his  wife  in  a  judicial  pro- 
ceeding. But  there  is  clearly  nothing  in  the  nature  of  this  charge  to  justify 
the  admission  of  the  testimony  of    the  latter  to  sustain  the  indictment 


1.  (. 

i    3 


.11 

J. 


.'-.iil 


*f 


!(J 


0 


AMERICAN  CRIMINAL  REPORTS. 


without  a  (Itimrtiirc  from  all  the  well  settled  principles  uiwn  this  suhjoct. 
Here  is  no  violi-nce,  no  injury,  no  threat  of  injury  to  her  person,  against 
which  it  is  necesHiiry  to  protect  her.  She  hail  abunilant  means  of  defense 
and  redress  in  the  judicial  proceedings  in  which  the  fraud  was  practiced, 
a.s  is  api)arent  from  the  fact  that  the  decree  obtained  by  default  ha.s  been 
vacated  on  lu-r  api)lication.  It  is  easy  t«  suggest  much  stron^'er  cases  in 
favor  of  tlie  admissibility  of  such  evidence.  Suppose  a  wife  swears  the 
peace  against  her  husband,  can  his  oatli  be  permitted  to  indict  her  for  per- 
jury in  her  comjilaintf'  Or  suppose  a  husband  commits  perjury  in  swear- 
ing to  a  bill  for  divorce,  can  she  be  allowed  as  a  witness  to  convict  him  of 
the  perjury?  I  apprehend  that  alUvill  concur  in  answering  these  supposi- 
tions in  the  negative,  because  there  is  no  such  imminent  nevemty  as  war- 
rants a  departure  from  the  general  rule.  By  the  same  reasoning,  it  is  obvi- 
ous that  if.  in  this  case,  the  husband  had  himself  made  the  false  oath  to  the 
service  of  the  subfKena,  the  wife  could  not  have  testified  against  him  on 
tlie  trial  of  an  indictment  for  the  perjury.  Much  less  can  she  now  be  a 
witness,  when  he  is  charged  with  sultornation  of  perjury,  in  which  the 
injury  is  less  direct. 

"  I  assume  that  it  will  not  be  pretended  that  the  case  stands  any  better 
for  the  prosecution,  on  the  ground  that  she  was  called  merely  to  disprove 
the  fact  sworn  to  by  Wood.  For  as  Wood's  perjury  is  an  essential  link  in 
the  chain  of  the  prisoner's  guilt,  her  testimony  on  that  jxjint  Is  as  directly 
against  her  husband  as  if  she  were  called  to  speak  to  his  own  acts. 

"I find  in  the  decisions  of  the  neighboring  states  the  following  cases 
illustrative  of  the  rule.  In  Den  v,  Johnson,  3  Harr.  87,  it  is  decided  that  a 
wife  can  not  testify,  in  a  suit  to  which  her  husband  is  not  a  party,  to  any 
matters  for  which  her  husband  may  be  indicted.  In  State  v.  Welch,  6 
Maine  Rep.  30,  it  was  held  that  on  the  trial  of  a  woman  for  adultery,  the 
husband  of  the  woman  with  whom  the  adultery  was  committed  is  not  com- 
petent. In  the  ca'<e  of  State  v.  Burlimjham,  15  Me.  10-1,  it  was  held  that  on 
an  indictment  against  several  for  a  conspiracy  to  charge  the  wife  of  one  of 
them  with  adultery,  such  wife  is  not  a  competent  witness.  This  case  was 
very  fully  argued  by  the  attorney  general  (Clifford)  and  in  the  able  opinion 
given,  the  Court  say,  '  it  is  believed  that  in  criminal  prosecutions,  the  ad- 
missibility of  the  husband  or  wife  must  be  confined  to  cases  seeking  secu- 
rity of  the  i)eace,  and  cases  of  personal  violence.' " 

The  time  was  when  a  husband  might  command  his  wife  to  serve  him 
like  a  slave  and  enforce  his  command  by  personal  chastisement,  but  that 
time  is  no  more.  If  a  married  woman  may  engage  in  business  for  herself, 
contract  and  incur  obligations  as  a  feme  sole,  may  make  her  husband  her 
agent  or  attorney  in  fact,  why  should  she  not  be  a  competent  witness  in  all 
matters  relating  to  her  separate  estate,  or  where  her  right  of  support  or 
separate  hiterests  are  involved?  The  old  maxim  of  the  law  that  the  hus- 
band and  wife  are  one,  and  that  one  the  husband,  is  one  of  the  relics  of 
feudal  barbarism.  The  genius  of  the  present  age  is  to  extend  to  woman 
full  protection  of  the  law,  but  care  must  be  taken  not  to  raze  those  sacred 
barriers  which  were  intended  to  guard  the  sanctity  and  secrets  of  the  fam- 
ily from  an  intruding  public. 

E.vem2)tions.—A  woman,  even  without  a  child,  is  a  "family"  if  de- 
serted by  her  husband,  and  is  entitled  to  exemptions,  but  the  husband 
is  not,  in  such  cases.    Berry  v.  Hanks,  28  III.  App.  55. 


STATE  V.  JOHNSON. 


Care  of  child— W\\ere  husband  abandons  his  wife  she  is  entitled  to 
custody  of  the  cliildren  and  their  earnings.  Woodgatt  v.  Connell,  38 
III.  481. 

^Idw/^erj/.— Adultery  on  the  part  of  defendant's  wife  after  ho  abandoned 

hor  is  no  defense  to  a  prosecution  for  abandoning  liis  family  if  the  wife  was 

j  not  guilty  of  any  infidelity  prior  to  such  abandonment.    Hall  v.  State,  100 

Ala.  80. 

>ja|  Liability  for  support  furnished, — When  a  husband  deserts  or  abandons 

'4  his  wife  witliout  making  provision  for  her  support,  and  a  third  person^ad- 

vtmces  money  to  her,  which  she  uses  to  obtain  necessaries,  an  equitable 

debt  is  thereby  created,  which  the  person  making  the  advance,  may  enforce 

by  suit  in  e<iuity;  this  rule  rests  entirely  on  the  fault  of  the  husband,  and 

can  not  be  applied  to  a  case  where  the  husband's  failure  in  duty  is  the  result 

of  misfortune.    Leuppie  v.  Osborn's  Ex'rs,  52  N.  J.  Eq.  637. 

MTiat  constitutes. — Where  a  man  refuses  to  live  and  cohabit  with  his 
wife,  or  to  recognize  her  as  such,  it  is  abandonment,  though  they  sleep 
beneath  the  same  roof.     Evans  v.  Evans,  93  Ky.  510. 


State  v.  Johnson. 
(115  Mo.  480.) 


Abduction  :  Mliat  constitutes — Presence  of  prosecutor  in  grand  jury 
room— Belief  as  to  age  of  female- -Unchastity—Imlictnicnt— Venue  of 
offense. 

1.  An  indictment  charging  that  defendant  on  a  certain  day  "  did,  then  and 

there,  being  one  P.,  a  female  under  the  age  of  eighteen  years,  *  »  » 
unlawfully  and  feloniously  take  from  one  P.,  her  father,  he  *  *  * 
then  and  there  having  the  legal  charge "  of  her  person,  and  without 
his  consent,  for  the  purpose  of  concubinage,  is  sufficient,  under  Rev. 
Stat.  1889,  Sec.  3484,  providing  that  the  taking  away  of  any  female 
under  the  age  of  eighteen,  from  her  father,  for  the  purpose  of  concu- 
binage, is  a  felony. 

2.  Evidence  by  members  of  the  grand  jury  indicting  defendant,  that  the 

prosecuting  attorney  was  present  during  their  investigation,  and  while 
expressing  their  opinions  and  finding  the  indictment  against  him,  is 
inadmissible,  though  Rev.  Stat,  1889,  Sec.  4077,  provides  that  such 
officer  shall  not  be  present  during  the  expression  of  their  opinions  or 
the  giving  of  their  votes  on  any  matter,  since  grand  jurors  are  in- 
competent to  testify  to  their  own  actions. 

3.  Statements  of  the  prosecutin&attorney  as  to  what  occurred  in  the  grand 

jury  room  are  inadmissible. 

4.  It  is  no  defense  to  such  indictment  that  the  female  taken  for  concubin- 

age was  not  chaste. 

5.  Inducing  the  female,  by  solicitations  and  presents,  to  leave  home,  and 

go  with  defendant,  is  a  "  taking  away  "  within  the  statute. 


I 


\. 


I 


8 


AMERICAN  CRIMINAL  REPORTS. 


6  TliouRh  the  jury  were  instructetl  that  if  defemlant'a  purpose  in  taking 
her  away  whb  to  cohabit  with  lier,  "  even  for  a  single  night."  sucli  tak- 
ing was  for  the  purpose  of  concubinage,  defendant  can  not  complain  of 
the  error,  where  it  appears  that  he  had  lived  with  her  as  his  wife  for 

three  months. 

7.  It  is  no  defense  that  defendant  had  reason  to  believe  that  such  female 

was  over  eighteen  years  of  age  when  the  offense  was  committed. 

8.  Rulings  of  the  trial  court  on  the  evidence,  where  its  action  is  not  ques- 

tioned in  the  motion  for  a  new  trial,  can  not  Ije  reviewed  on  apiJeal. 

9.  The  circuit  court  of    the   county   wherein  defendant   l)egan  making 

advances  to  the  female,  and  urging  her  to  go  away  with  him,  has  juris- 
diction, since  it  is  the  "taking  away"  for  the  puqiose  of  concubin- 
age that  constitutes  the  offense,  whether  sexual  intercourse  follows  or 

not. 

10.  The  fact  that  the  parties  subsequently  had  sexual  intercourse  is  evi- 
dence of  the  intent 

Appeal  from  the  Circuit  Court  of  Warren  County;  W.  W. 
Edwards,  Judge. 


"William  II.  Johnson  was  convicted  of  taking  away  from 
her  father  a  female  under  the  age  of  eighteen  years,  for  the 
purpose  of  concubinage,  and  appeals.  Affirmed. 
The  other  facts  fully  appear  in  the  following  statement : 
At  the  March  term,  18S8,  of  the  Circuit  Court  of  Ralls 
County,  the  defendant  was  indicted  for  taking  away  from  her 
father,  in  said  county,  one  Rosa  Price,  a  female  under  the  age 
of  eighteen  years,  for  the  purpose  of  concubinage.  A  motion 
to  quash  the  indictment  was  filed,  and  also  a  plea  in  abatement, 
both  of  which  were  overruled.  The  venue  was  changed,  on  the 
application  of  defendant,  to  the  Circuit  Court  of  Warren 
County,  where  a  trial  was  had  at  an  adjourned  term  of  said 
court;  and  the  14th  day  of  December,  1891,  the  defendant  Avas 
fouiid  guiliy,  and  his  punishment  assessed  at  two  years'  im- 
prisonment in  the  penitentiary.  The  evidence  tends  to  show 
that  Rosa  Price,  during  the  years  1886  and  1887,  lived  with 
her  father,  Lewis  Price,  at  New  London,  Ralls  county,  Mo.; 
that  she  was  born  in  April,  1870,  and  was  under  the  age  of 
eighteen  years  at  the  time  of  the  commission  of  the  alleged 
offense;  that  she  had  been  working  in  a  Avoolen  mill,  but  her 
health  began  to  fail,  when  she  quit  that,  and  became  a  book 
agent.  In  November,  1886,  she  became  acquainted  with  and 
sold  defendant  a  book.  Defendant  was  a  man  of  family,  which 
she  knew,  and  at  that  time  proprietor  of  a  drug  store  at  New 


STATE  V.  JOHNSON. 


9 


London.  From  that  time  defendant  cultivated  the  jirosocuting 
witness,  followed  her  upon  the  streets,  invited  her  into  his 
store,  told  her  of  his  love  for  her,  made  her  many  }>resents, 
consisting  of  jewelry,  valentines  and  money,  and  in  January, 
1SS7,  proposed  to  her  that  she  accompany  him  on  a  trip  or 
visit.  She  accepted  iiis  invitation,  and  it  was  arranged 
for  tlieiu  to  go  to  St.  Louis.  In  February  they  took  the 
same  train;  went  over  to  Hannibal,  there  changed  cars,  and 
wont  to  St.  Louis.  At  St.  Louis  they  stopjied  at  tl>e  Bristol 
Hotel — defendant  paving  all  expenses — where  thoy  regis- 
tered as  man  and  wife,  and  occupied  the  same  l)ed.  They 
returned  the  next  day,  she  going  to  Clarksville,  Pike  county, 
where  she  visited  several  days;  he  returning  home.  While  at 
Clarksville  she  received  many  letters  from  defendant,  in  one 
of  which  he  said  :  "  If  you  i)ossibly  can  go  on  that  little  trip 
next  week,  I  hope  you  will  do  so,  and  I  hope  you  can  arrange 
it  so  you  can  stay  longer  this  time,  if  possible.  I  want  us  to 
try  to  complete  our  arrangements  this  time,  if  we  can  possibly 
do  so  *  *  *  for  I  am  getting  tired  of  staying  away  from 
the  little  one  who  is  nearer  and  clearer  to  me  than  all  others 
on  eartli."  He  arranged  by  letter  for  her  to  meet  him  at  St. 
Peter's,  and  go  to  St.  Louis  again.  They  spent  two  nights  and 
days  at  the  same  hotel  in  St.  Louis,  occupying  the  same  bed  as 
on  the  former  occasion.  A  third  trip  was  taken  to  St.  Louis, 
when  defendant  arranged  another  triji — this  time  to  Montreal, 
Canada — where  they  lived  together  as  man  and  wife,  having 
sexual  intercourse,  and  going  under  the  assumed  names  of  Will- 
iam Carrington  and  wife.  After  three  months'  residence  in 
Montreal,  defendant  abandoned  the  prosecuting  witness,  leav- 
ing he  a  worthless  check  for  §30,  which  is  identified  as  being 
in  his  handwriting,  and  introduced  in  evidence.  She  returned 
to  Ralls  county,  and  upon  the  trial  identified  rings,  a  valentine 
and  a  bracelet  given  her  by  defendant;  and  letters  written  by 
him  to  her  (many  of  the  letters  had  been  burned  by  him)  were 
introduced  in  evidence.  The  parents  and  neighbors  testified, 
and  the  family  record  of  births  and  deaths  showed  the  age  of 
the  prosecuting  witness  to  have  been  seventeen  at  the  time  of 
the  commission  of  the  felony.  Defendant's  witnesses  testified 
that  her  reputation  for  chastity  and  virtue  was  bad,  while  an 
equal  number  of  her  neighbors  and  friends  testified  it  was  good. 
Defendant  established  a  good  reputation  for  "honesty  and 


H 


10 


AMEUICAN  CRIMINAL  REPORTS. 


ii 


veracity,"  but  ho  did  not  ffo  upon  the  stund.  Dofondnnt 
did  attempt  to  estubiisli  by  testimony  introduced  in  his  behalf 
that  the  lather  had  consented  to  his  dau^rhter's  infamy,  and 
was  partirejii^  rrhu  in  in  to  her  ruin,  and  that  tiie  ^\v\  had  induced 
and  persua(h!d  defendant  to  accompany  lier,  Tiiere  was  no  evi- 
dence introduced  on  the  part  of  the  defendant  tending  to  con- 
tradict the  witness,  Kosa,  as  to  the  gifts,  tlie  writing  of  the 
letters,  or  check,  nor  as  to  their  arrangements  for  their  several 
trips  to  St.  Louis  and  to  Canada,  where  <'-fendant  abandoned 
her.  After  his  conviction,  defendant  filed  his  motion  for  new 
trial,  and  also  in  arrest,  which  being  overruled  the  case  is  hero 
by  ajipeal. 

Peers  d;  Morsey,  J.  P.  Wood,  and  Jo8.  S.  Laxirlcx,  for  appel- 
lant. 
The  Attorney  General,  for  the  State. 

BcROEss,  J.  (after  stating  the  facts.)  The  indictment  in 
this  case  is  as  follows :  "  The  grand  jurors  for  the  State  of 
Missouri,  summoned  from  the  body  of  Rails  county,  impaneled, 
charged  and  sworn,  upon  their  oaths  present  that  William  II. 

Johnson,  late  of  the  county  aforesaid,  on  the  —  day  of , 

18S7,  at  the  county  of  Ralls,  state  aforesaid,  did  then  and 
there  being,  one  Rosa  Price,  a  female  under  the  age  of  eighteen 
years,  to  wit,  seventeen  years,  unlawfully  anil  feloniously  take 
from  one  Lewis  Price,  her  father,  he,  the  said  Lewis  Price, 
then  and  there  having  the  legal  charge  of  the  person  of  the 
said  Rosa  Price,  without  the  consent  and  against  the  will  of 
the  said  Lewis  Price,  for  the  purpose  of  concubinage,  by  having 
illicit  sexual  intercourse  with  him,  the  said  William  \\.  John- 
son, against  the  peace  and  dignity  of  the  State."  This  indict- 
ment is  drawn  under  section  3181,  Rev.  St.  1889,  which  is  as 
follows :  "  Every  person  who  shall  take  away  any  female, 
under  the  age  of  eighteen  years,  from  her  father,  mother,  guard- 
ian, or  other  person  having  the  legal  charge  of  her  person, 
either  for  the  purpose  of  prostitution  or  concubinage,  and  any 
father,  mother,  guardian,  or  other  person  having  the  legal 
charge  of  her  person,  who  shall  consent  to  the  same,  shall,  upon 
conviction  thereof,  be  punished  by  imprisonment  in  the  peniten- 
tiary not  exceeding  five  years."  Defendant's  contention  is  that 
the  indictment  is  unintelligible,  in  that  it  does  not  allege  that 


•I 

i 


STATE  V.  JOHNSON. 


11 


(k'foniliint  took  Rosa  Price  nway  from  her  father,  nor  that  her 
fatlicr  had  legal  charge  of  her.  We  do;  not  think  tiiat  it  is 
suhjeot  to  tiieso  objections.  While  it  is  rather  inartistically 
drawn,  it  contains  all  of  the  averments  reciuired  by  the  statute, 
and  does,  as  we  conceive,  allege  that  the  defendant  took  Kosa 
from  her  father,  and  that  he  was  in  the  legal  charge  of  her. 

Defendant,  in  support  of  his  plea  in  abatement  to  the  in- 
dictment, offered  to  prove  by  several  members  of  the  grand 
jury  by  whom  it  was  preferred,  and  also  by  the  admissions  of 
the  prosecuting  attorney,  that  he  was  present  during  their  in- 
vestigation and  expressing  their  ojjinicms  in  regard  to  the 
charge  against  defendant,  and  the  finding  of  the  indictment 
against  him.  The  court  excluded  the  evidence  offered,  and 
refused  to  hear  the  same.  Section  4077.  llev  Stat.  1S80,  with 
regard  to  the  rights  and  privileges  of  prosecuting  attorneys, 
provides  that,  "such  attorney  shall  be  alio  ved  at  all  times  to 
a])pear  before  the  grand  jury,  on  his  request,  for  the  purpose 
of  giving  information  relative  to  any  matter  cognizable  by 
them,  and  may  be  jiermitted  to  interrogate  witnesses  before 
them  when  they  or  he  shall  deem  it  necessary;  but  no  such 
attorney  or  any  other  officer  or  person,  except  the  grand  jurors, 
shall  be  permitted  to  be  present  during  the  expression  of  their 
opinions  or  the  giving  their  votes  on  any  matter  before  them." 
Dofendant's  counsel,  to  sustain  their  ])osition,  rel}' mainly  upon 
the  case  of  liothschUd  v.  State,  7  Tex.  Ai)p.  519,  in  which  the 
court  says:  "The  purity  and  impartiality  of  the  grand  jury 
room  have  ever  been  matters  of  watchful  solicitude  on  the  part 
of  the  law.  It  is  needless  to  inquire  why  this  particularity.  Suf- 
fice it  to  say,  it  is  the  law,  and  manifestly  enacted  for  wise  pur- 
poses. By  its  due  observance,  every  person,  when  arraigned 
before  our  courts,  will  have  reason  to  feel  and  believe  that  he 
has  not  been  presented  through  envy,  hatred  and  malice,  nor 
that  im]»roper  influences  have  penetrated  that  body  which  the 
law  preserves  as  sacred,  and  wrung  from  it  an  accusation  which 
otherwise  would  never  have  incumbered  the  docket."  In  the 
same  case,  in  discussing  the  duties  and  privileges  of  grand 
juries,  the  court  uses  the  following  language:  "In  prescribing 
the  duties,  privileges  and  powers  of  that  body,  almost  the  first 
mandate  of  the  law  is  that  the  deliberations  of  the  grand  jury 
shall  be  secret."  It  further  prescribes  that  "  the  district  attor- 
ney may  go  before  the  grand  jury  at  any  time,  except  when 


l^Si 


'4- 


If 


I 


ii' 

\ 
i  'I 


ii 

111 


'! 


-^1 


'>t 


12 


AMERICAN  CRIMINAL  REPORTS. 


thev  are  discussing  the  propriety  of  finding  a  bill  of  indict- 
ment, or  voting  on  the  same."    And  in  furtlier  manifestation 
of  the  purpose  of  the  lawmaking  ])o\ver,  demonstrating  that 
its  command  was  something  more  than  an  idle  direction  or 
regulation,  it  prescribes  as  one  of  the  grounds  for  setting  aside 
an^indictment,  and  holding  it  for  naught,  "that  some  person 
not  authorizetl  by   law   was  present  when  tiie  grand   jury 
were  deliberating  upon  the  accusation  against  the  defendant, 
or  were  voting  upon  the  same."    The  supreme  court  held  that 
because  of  the  presence  of  the  prosecuting  attorney  before  the 
grand  jury  Avhile  the  case  was  being  considered,  his  ])resence 
was  fatal  to  the  indictment.     It  does  not  appear  from  this  case 
how  the  presence  of  the  prosecuting  attorney  in  the  grand  jury 
room  was  purposed  to  be  shown — whether  by  members  of  the 
jury,  the  prosecuting  attorney  or  by  otlier  persons.     It  will  be 
observed  that  our  statute  does  not  provide  that  the  presence  of 
the  prosecuting  attorney  in  the  grand  jury  room  during  their 
deliberations,  shall  be  ground  for  setting  aside  an  indictment, 
and  holding  it  for  naught,  as  does  the  Texas  statute.     Nor 
does  it  prohibit  the  presence  of  the  prosecuting  attorney  at  any 
time  other  than  during  the  expressions  of  their  opinions  or  the 
giving  of  their  votes  on  some  matter  before  them.     Grand 
juries,  for  their  own  protection,  and  that  they  may  be'  inde- 
pendent and  efficient  in  the  discharge  of  their  duties,  are  sworn 
to  secrecy,  and  if  the  sanctity  of  their  room  can  be  invaded, 
and  they  be  required  to  testify  as  to  what  occurred  therein, 
and  Avhat  influences  were  exer'  "i  to  induce  them  to  prefer  in- 
dictments,  che  obligation  thus  administered  would  be  a  mere 
idle  ceremony.    While  it  should  not  be  used  as  a  means  of 
prosecution,  yet  our  laws  are  such  that  no  one  can  be  ])rose- 
cuted  and  punished  in  this  state  for  a  felony,  as  such,  without 
first  having  been  indicted  by  a  grand  jury,  let  the  crime  be 
ever  so  enormous,  or  wherever  it  may  be  committed.     We  do 
not  contend  that  grand  jurors  may  not  be  sworn  as  witnesses 
in  regard  to  infractions  of  the  law  which  occur  in  their  room 
or  presence,  but  we  do  hold  that  they  are  inconijietent  to  tes- 
tify in  regard  to  their  own  actions,  and  as  to  what  induced 
them  to  find  the  indictment  in  this  case.    A  similar  question  " 
was  before  this  court  in  the  case  of  State  v.  Baker,  20  Mo.  339, 
and  it  was  held  that  "  members  of  the  grand  jurv  can  not 
under  our  statute,  be  j^ermitted  to  testify  how  they  or  their  fel- 


STATE  V.  JOHNSON. 


ly 


low  members  did  or  did  not  vote,  for  the  purpose  of  showing 
that  twelve  did  not  concur  in  finding  the  indictment,  nor 
would  they,  it  seems,  be  permitted  to  state  the  fact  that  twelve 
did  not  concur."  This  case  was  cited  with  ai>proval  in  the 
case  of  State  v.  Gradi/,  Si  Mo,  221.  The  statements  of  the 
prosecuting  attorney  as  to  what  occurred  in  the  grand  jury 
room  were  merely  hearsay,  and  inadmissible  on  that  ground. 
Nor  would  he  have  been  permitted  to  disclose  as  a  witness  the 
proceedings  before  the  grand  jur}'.  In  the  case  of  McLellan 
i\  li'u'hardson,  13  Me.  82,  in  which  it  was  proposed  to  intro- 
duce the  prosecuting  attorney  as  a  witness,  and  to  prove  by  him 
what  occurred  in  the  grand  ju.y  room,  the  court  says  :  "  It  is 
the  policy  of  the  law  that  the  preliminary  inquiry  as  to  the 
guilt  or  innocence  of  a  party  against  whom  complaint  has  been 
preferred  should  be  secretly  conducted.  In  furtherance  of  the 
same  object,  every  grand  jury  is  sworn  to  secrecy.  One  reason 
uia\'  have  been  to  ])revcnt  the  escape  of  the  party  charged,  to 
which  he  might  be  tempted,  if  ai)prised  of  the  proceedings  in 
train  against  him.  Another  may  have  been  to  promote  free- 
dom of  deliberation  and  opinion  among  the  grand  jury, 
which  might  be  impossible  if  it  were  known  that  the  i>art  taken 
by  each  might  be  disclosed  to  the  accused  or  his  friends.  A 
timid  juror  might,  in  that  case,  be  overawed  by  the  power  and 
connections  of  an  individual  charged.  If  this  motion  were  sus- 
tained, everything  done  in  the  grand  jury  room  might  be  un- 
veiled whenever  the  same  subject-matter  was  on  trial  before  a 
traverse  jury.  It  would  be  to  oi)en  a  door  which  the  law  in- 
tended should  be  closed.''  In  the  case  ot  State  v.  Grady,  siip/n, 
the  offer  was  to  ])rove  by  the  prosecuting  attorney  what  was 
not  done  in  the  grand  jury  room — tliat  is,  that  no  witnesses 
were  brought  before  it,  and  that  the  indictment  was  found 
without  the  presence  of  any  witnesses  ;  and  it  was  held  that  it 
was  ])roper  and  legitimate,  and  that  he  was  competent  for  that 
liur])ose.  A  prosecutin;^  attorney,  being,  as  he  is,  the  repre- 
sentative of  the  state  in  regard  to  criminal  uifenses,  would  be 
unmindful  of  his  duty,  and  unworthy  of  the  position  occupied 
by  him,  if,  when  knowing  that  a  crime  had  been  committed,  he 
failed  to  call  the  attention  of  the  grand  jury  of  the  count}'  to 
it.  in  order  that  the  case  might  be  investigated,  and  the 
offender  brought  to  justice.  There  was  no  error  in  excluding 
the  evidence  offered. 


M 


S'ijl 


ml 


M 


;:t  m 


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m 


ft  .' 

it  ■' 

■  .  1» 


14 


AMERICAN  CRIMINAL  REPORTS 


Objection  is  made  by  defendant  to  the  second  instruction 
given  by  tiie  court  on  tiie  part  of  the  state.     This  instruc- 
tion  is  to  the  effect   that  although  the  jury  may   believe 
from  the  evidence  that  Kosa  Price,  at  the  time  she  first  met 
the  defendant,  had  a  general  bad  reputation  for  chastity,  and 
was  in  fact  unchaste,  yet  such  facts  constituted  no  defense  to 
the  indictment.     The  cases  of  Jetdinsv.  State,  15  Lea  (Tenn.), 
G7-1;  Scruggs  v.  State,  Oo  Tenn.  SI,  and  Brown  v.  State,  72  Md. 
4G8,  seem  to  sustain  defendant's  contention,  and  to  hold  wliere 
the  girl  abducted  was  shoAvn  to  have  been  of  previous  unchaste 
character,  that   it  was  a  good  defense  to  the   prosecution. 
On  the  other  hand,  there  are  courts  of  equally  high  autliority 
which  announce  a  dilFerent  rule.     In  the  case  of  People  v.  De- 
mouHset,  71  Cal.  711,  the   Sujireme  Court  of   California,  in 
a  prosecution  under  a  similar  statute  to  the  one  under  consid- 
eration, and  for  a  similar  offense,  in  passing  upon  an  instruc- 
tion almost  exactly  like  the  one  given  in  this  case,  says :  ''  It  is 
claimed  that  this  instruction  is  erroneous  because  it  omits  the 
element  of  the  previous  chaste  character  of  the  female,  and  be- 
cause it  does  not  inform  the  jury  that  the  taking  must  have 
been  without  the  consent  of  the  parent.    It  will  be  observed 
that  the  section  says  nothing  about  the  chastity  of  tho  female. 
The  law  is  intended  to  protect  the  chaste,  and  reclaim  the 
erring ;  to  protect  parents  and  guardians  in  their  custody  and 
care  of  minor  females,  without  regard  to  the  character  of^uch 
females  for  chastity,  and  the  family  from  sorrow  and  disgrace. 
We  are  not  disposed,  in  the  construction  of  this  section,  to  in- 
terpolate any  phrase  that  will  detract  from  its  effectiveness  in 
this  regard."     See  also,  Viople  v.  Cook,  Gl  Cal.  478  ;  l\opJe  v. 
6'a;7't<?/', 4G  Mich.  442;  Statev.  6'//wo/i,  111  Mo.92.     We  think,as 
was  said  in  the  case  of  People  v.  Demousset,  supra,  that  the 
statute  was  intended  to  protect  the  chaste,  as  well  as  to  reclaim 
the  unchaste,  which  seems  to  best  comport  with  the  instincts  of 
humanity,  and  the  jirotection  of  young  girls.     It  mav,  with 
much  reason,  be  said  that  girls  who  are  reputed  to  have  taken 
a  misstep,  are  much  more  in  need  of  protection  of  the  law  from 
designing  men  than  those  who  are,  "  like  Caesar's  wife,  above 
suspicion,"  because  of  the  snares  set  for  and  the  inducements 
offered  them,  that  no  man,  though  ever  so  bold,  would  think 
for  a  moment  of  offering  to  one  whom  he  had  everv  reason  to 
believe  was  i)erfectly  chaste.    We  do  not  want  to  be  understood 


STATE  V.  JOHNSON. 


15 


as  saying  that  the  law  is  intended  to  protect,  or  that  it  does  in 
fact  embrace  within  its  provisions,  abandoned  girls. or  harlots, 
who  leave  their  homes  to  ply  their  occupation  as  such,  but  we  do 
say  that  girls,  although  they  may  have  done  wrong,  yet  if  under 
eighteen  years  of  age,  and  under  the  parental  roof,  are  ])ro 
tected  by  its  humane  provisions,  and  he  who  takes  one  thus 
situated,  with  or  without  the  consent  of  the  person  in  whose 
charge  she  is,  for  the  purpose  of  concubinage,  is  guilty  of  a 
violation  of  its  provisions. 

A  further  contention  is  that  the  fourth,  fifth,  seventh  and 
eighth  instructions  are  wrong,  inasmuch  as  they  do  not  correctly 
define  the  terra  "  take  away,"  as  used  in  the  statute.  One  of 
the  definitions  of  the  word  "  take  "  as  defined  by  "Webster,  is : 
"  To  move  or  direct  the  course ;  to  proceed,  to  go."  This, 
then,  being  the  literal  definition  of  the  word,  it  would  seem 
that  the  objection  is  not  well  founded.  If  the  testimony  of 
Rosa  Price  is  to  be  believed — and  in  this  regard  she  is  not  con- 
tradicted— the  defendant  not  only  directed  her  course  in  the 
different  trips  that  she  made  to  the  city  of  St.  Louis,  and 
finally  to  Canada,  but  he  furnished  her  the  means  with  which 
to  defray  her  expenses,  and  generally  accom]mnied  her,  or  met 
her  at  some  point  on  the  way,  suggested  by  himself.  That  she 
was  induced  to  leave  home  and  meet  defendant  on  these  vari- 
ous trii)s,  by  the  solicitations  and  inducements  offered  by  de- 
fondant,  there  can  not  be  the  possibiUty  of  a  doubt;  and  this 
is  all  that  is  required  in  order  to  bring  the  act  and  conduct  of 
defendant  within  the  meaning  of  the  term  "  take  away,"  as 
held  by  the  following  authorities  cited  by  defendant:  Slocum 
V.  Pt'ojde,  90  111.  274 ;  2\'ople  v.  Ifarshall,  59  Cal.  3SG;  State  v. 
Juniiwn,  38  Minn.  21 ;  State  v.  Stone,  106  Mo.  1. 

The  objection  to  the  first  instruction  on  the  jvart  of  the 
state  is  that  it  tells  the  jury  that  if  defendant's  purpose  in  taking 
Uosa  away  was  to  cohabit  with  her,  "  even  for  a  single  night," 
then  such  taking  away  was  for  the  purpose  of  concubinage, 
within  the  meaning  of  the  statute.  Admitting  that  it  is  sub- 
ject to  the  objection  urged  against  it,  and  that  the  taking  away 
for  one  act  of  intercourse,  or  for  one  night,  docs  not  come 
within  the  meaning  of  the  statute,  and  does  not  constitute  the 
offense  charged,  defendant  is  in  no  position  to  com|)lain  of  it, 
because  the  evidence  abundantly  shows  that  he  cohabited  with 
her  time  and  time  again,  and  lived  with  her  as  his  wife  for 


w 


', .  tj 


i    V  I 


10 


AMERICAN  CRIMINAL  REPORTS. 


over  three  months  at  one  time.    Taken  with  the  other  instruc- 
tions, it  could  not  have  misled  the  jury. 

Another  contention  is  that  the  court  committed  error  in 
faihnjr  to  instruct  the  jury  that  if  defendant  had  good  reason 
to  believe,  and  did  believe,  that  liosa,at  the  time  of  the  offense 
committed,  was  over  eighteen  years  of  age,  then  he  could  not 
be  convicted.  This  seems  to  be  rather  an  anomalous  posi- 
tion, and  is  certainly  not  sustained  by  reason  or  authority. 
For  the  same  reason,  any  person  guilty  of  carnally  and  un- 
lawfully knowing  any  female  child  under  the  age  of  fourteen 
years— which  by  section  3480  Eev.  St.  1SS9,  is  declared  to  be 
rape  and  a  felony— would  not  be  guilty  if  he  believed,  and  had 
food  reason  to  believe,  that  she  was  over  that  age.  Such  is 
not  the  law,  as  we  understand  it,  and  as  it  has  been  ruled 
by  this  coii.'t.  State  v.  ILnm,  109  Mo.  654;  Bish.  St.  Crimes, 
§  490;  Whart.  Crim.  Ev.,  §  724;  State  v.  Griffith,  67  :Mo.  287; 
Lawrence  v.  Com.,  30  Gratt.  845;  State  v.  Newton,  44  Iowa, 
45.  If  defendant  *hought,  at  the  time,  of  shielding  himself 
under  such  a  pi  text,  he  should  have  been  more  careful 
in  selecting  his  victim.  Upon  him  alone  rested  the  responsi- 
bility of  his  actions,  and  the  fact  that  he  may  have  believed,  or 
that  he  had  good  reason  to  believe,  that  she  w.as  over  eight- 
een years  of  age,  is  no  justification  or  excuse. 

Nor  is  the  eighth  instruction  of  the  state  subject  to  the 
objection  urged  against  it,  when  taken  in  connection  with  all 
of  the  instructions  given  on  the  trial. 

The  objection  that  the  court  committed  error  in  exclud- 
ing the  testimony  offered  by  defendant,  tending  to  show  spe- 
cific acts  of  lewdness  or  unchastity  on  the  part  of  Ilosa  shorth' 
prior  to  her  acquaintance  with  defendant,  was,  in  effect,  dis- 
posed of  by  the  third  paragraph  in  this  opinion,  in  passing 
upon  an  instruction  in  regard  to  the  same  matter.  But  even 
though  the  court  may  have  committed  error  in  its  rulino-  in 
excluding  this  evidence  (but  we  do  not  think  so),  and  in  ad- 
mitting the  family  Bible  in  which  the  date  of  her  birth  seems 
to  have  been  recorded,  no  such  question  was  raised  in  the 
motion  for  a  new  trial,  and  for  that  reason  can  not  now  be 
raised  in  this  court,  llev,  St.  1889,  §  4270;  Itay  v.  Thompson, 
20  Mo.  App.  436;  State  v.  Robinson,  79  Mo.  66;  State  v.  Burns,  99 
Mo.  473;  Bromufield  v.  Insurance  Co.,  20  Mo.  A])p.  390;  State 
V.  Steen,  115  Mo.  474,  and  the  authorities  therein  cited.     The 


STATE  V.  JOHNSoN. 


17 


same  may  be  said  in  regard  to  the  letters  read  in  evidence,  and, 
in  fact,  all  the  evidence  in  the  case. 

Tlie  only  remaining  question  that  it  is  thought  necessary 
to  notice  is  that  in  regard  to  the  jurisdiction  of  the  Circuit 
Court  ot  Kails  County,  where  the  indictment  was  found,  and 
the  olfensc  is  alleged  to  have  been  committed.  There  were  but 
two  persons,  as  appears  from  the  record  in  this  case,  who  knew 
all  about  the  plans  and  intrigues  of  Eosa  and  the  defendant, 
and  they  were  the  persons.  According  to  her  story  (and  she 
is  not  contradicted),  defendant  began  making  love  and  ad- 
vances to  her  in  Xew  London,  in  that  county,  and  urging  her 
to  make  tri|)s  with  him  to  the  city  of  St.  Louis,  and  finally  to 
leave  the  country  with  him,  and  to  go  to  some  point  beyond 
the  border  of  the  United  States,  which  finally  they  did;  ho  in 
the  meantime  making  her  presents  and  furnishing  her  money. 
All  of  the  })reliminaries  were  arranged  in  that  county,  and 
where  the  purpose  of  those  visits  was  finally  consummated  and 
accomi)lished  makes  no  difference  whatever  in  the  case.  It 
was  the  "taking  away  "  for  the  purpose  of  concubinage  that 
constituted  the  offense,  and  violated  the  law%  whether  sexual 
intercourse  followed  or  not.  State  v.  Gihson,  lOS  Mo.  575; 
Shmnn  v.  People,  90  111.  274;  Henderson  v.  Pe.ople,  12i  111.  G07; 
SMe  V.  Glhmn,  111  Mo.  02.  The  fact  that  they  subsequently 
had  sexual  intercourse  would  only  be  evidence  of  the  intent,  but 
in  this  case  there  was  no  doubt  in  regard  to  the  intent,  as  the 
])arties  slept  and  cohabited  together  in  the  city  of  St.  Louis,  and 
lived  for  over  three  months  together,  as  man  and  wife,  in  the 
city  of  ]Montreal,  Canada.  The  evidence  conclusively  shows  de- 
fendant's guilt,  and  being  unable  to  perceive  any  error  in  the 
record,  or  trial  of  the  cause,  the  judgment  is  affirmed. 

All  concur. 


mh 


i  Mi 


-:¥_  I  ■  li-v 


Notes. — What  con i^titutes  the  offense. — An  instruction  in  a  prosecution  for 
abduction  that,  if  the  fomale  charged  by  tlie  indictment  witli  having  been 
alnlucted  and  defiled  was  persuaded  by  tlie  defendant  to  go  with  him,  and 
was  seduced  by  him,  he  should  be  convicted,  is  erroneous,  since  under 
Code,  SJ  2697,  she  naust  have  been  taken  unlawfully,  against  her  will,  and 
by  force,  fraud,  deceit,  stratagem  or  duress,  have  been  compelled  or  induced 
to  be  defiled.     Lampton  v.  State  (Miss.),  11  So.  650. 

In  HaiKjood  v.  State,  98  Ala.  61,  the  defendant  was  indicted  and  con- 
victed under  section  3744  of  the  Code  of  1886,  which  declares  that  "any 
person  who  takes  any  girl  under  fourteen  years  of  age  from  her  father, 
mother,  guardian,  or  other  person  having  the  legal  charge  of    lier,  for  the 

8 


r  If 

:        '1 


18 


AMERICA^f  CRIMINAL  REPORTS. 


jjuniosc  of  prostitution,  concubinage,  or  marriage,  must,  on  conviction,  be 
imprisoned  in  the  penitentiary  for  not  less  tlian  two  years."  The  charge 
in  the  indictment  is  "that  Mary  Haygood  did  unlawfully  take  one  Minna 
Jones,  a  girl  under  the  age  of  fourteen  years,  from  her  mother,  for  the 
purpose  of  prostitution."  The  testimony,  if  bclit  ved,  proves  that  defend- 
ant did  induce  Minna  Jones  to  leave  the  home  of  her  mother,  and  go  with 
her,  the  said  Mary  Haygood,  to  an  unoccupied  house,  some  distance  away, 
for  the  purpose  of  there  meeting  one  S.,  and  ha^  ing  se  ual  intercourse  with 
him;  and  that  this  purpose  was  carried  into  cxecr; ■  Tliere  is  no  testi- 

mony which  proves,  or  tends  to  prove,  that  defer  i     all  or  anything 

she  is  proven  to  have  done  had  any  purpose  other  >  ^o  )ng  the  stiid  S. 
and  the  said  Minna  Jones  together  on  the  one  occasion,  and  in  tlie  imoc- 
cupied  house,  that  they  might  have  sexual  interce^rse. 

Mr,  Chief  Justice  Stone,  delivering  the  opinion  of  th  ■  court  r --rsinga 
judgment  of  conviction,  cites  the  following  cases  in  sup[K/n,  of  the  decision : 
"  In  the  case  of  Carpenter  v.  People,  8  Barb.  COS,  the  Court  employs  Jiis 
language :  '  We  are  entirely  clear  that  by  the  expression  in  question,  as 
used  in  the  statute,  it  was  intended  that,  in  order  to  constitute  the  offense 
thereby  created,  the  abduction  of  a  female  must  be  for  the  purpose  of  her 
indiscriminate  meretricious  commerce  with  men;  that  such  must  be  the 
case  to  make  her  a  prostitute,  or  her  conduct  prostitution, '  ithin  the  act.' 
In  Com.  V.  Cook,  12  Mete.  93,  the  Supreme  Court  of  Massacuusetts,  in  con- 
struing a  statute  similar  to  ours,  thus  expressed  the  unanimous  opinion  of 
the  court :  '  Tlie  court  are  of  the  opinion  that  the  offense  made  punish- 
able by  this  statute  is  something  beyond  that  of  merely  procuring  a  female 
to  leave  her  father's  house  for  the  sole  purpose  of  illicit  sexual  intercourse 
with  the  individual  thus  soliciting  her  to  accompany  him;  tliat  slie  must 
be  enticed  away  with  the  view  and  for  the  purpose  of  placing  her  in  a 
house  of  ill  fame,  place  of  assignation,  or  elsewhere, — to  become  a  prosti- 
tute in  the  full  and  exact  sense  of  that  term;  that  she  must  be  placed  there 
for  common,  indiscriminate  sexual  intercourse  with  men;  or,  at  least,  that 
she  must  be  enticed  away  for  the  purpose  of  sexual  intercourse  by  others 
than  the  party  who  thus  entices  her;  and  that  a  mere  enticing  away  of  a 
female,  for  a  personal  intercourse,  will  not  subject  the  offender  to  the  pen- 
alties of  this  statute.' "  The  foregoing  principles  are  fully  supported  by  the 
following  cases :  State  v.  Ruhl,  8  Iowa,  447;  Osborn  v.  State,  52  Ind.  52fi; 
Sloeum  V.  People,  90  111.  274. 

Belief  as  to  age  of  fondle.— In  People  v.  Dolan,  96  Cal.  315,  in  respect  to 
consent  and  belief  as  to  age  the  court  charged  the  jury  :  '•  You  are  in- 
structed that  the  consent  of  the  child,  Kittle  Sheridan  (if  she  did  consent),  is 
of  no  avail  to  the  prisoner  if  she  is  under  age,  notwithstanding  that  the 
defendant  bona  fide  believed  and  had  reasonable  grounds  for  believing,  that 
she  was  over  age."  Sustaining  this  ruling  the  court  says :  There  was  no 
dispute  but  that  the  girl  was  under  age,  as  we  read  the  record,  and  counsel 
concede  that  this  fact  was  proven;  and  the  defendant  must  in  a  case  of  this 
sort  act  at  his  peril  in  abducting  a  girl  under  age,  and  can  not  defend  him- 
self on  the  plea  of  ignorance  as  to  her  age.    People  v.  Fowler,  88  Cal.  138. 

Unchastity—Clmracter  and  habit.— In  a  prosecution  under  Pen.  Code 
Cal.  §  267,  which  makes  it  unlawful  to  take  any  female  under  the  age  of 
eighteen  away  from  the  person  having  legal  charge  of  her  person  without 
his  consent,  for  the  purpose  of  prostitution,  evidence  as  to  whether  the  child 


STATE  V.  JOHNSON. 


19 


liail  .1  habit  of  boing  away  from  home  at  night  is  immaterial.  People  v. 
Dolan,  96  Cal.  315. 

In  Cargill  v.  Com.,  93  Ky.  578,  tlie  accused  offered  to  prove  specific 
acts  of  uncliastity  with  other  men  by  the  prosecutrix,  wliidi  the  court 
rejected.  Sustaining  this  ruling,  tlie  Supreme  Court  says :  If  tliis  were 
true,  it  would  not  have  shown  that  the  appellant  was  not  giiilty  of  de- 
taining her  for  an  immoral  purpose,  against  her  will.  In  rape  the  charac- 
ter of  the  prosecutrix  for  chastity  may  be  impeached,  but  it  must  be  done 
)iy  evidence  of  her  general  reputation,  and  not  by  proof  of  particular  in- 
stances of  unchastity.  3  Greenl.  Ev.,  §  214.  Wliile  the  language  of  the 
state's  attorney  in  the  argument  bf  the  case  was  quite  emphatic  in  saying 
that  the  testimony  of  the  accused  showed  him  to  be  an  infamous,  perjured 
scoundrel,  yet  it  did  not  pass  the  proper  limit,  looking  at  the  evidence  from 
his  standpoint. 

Where,  in  a  tri.al  for  enticing  from  her  parents,  for  the  purpose  of 
prostitution,  a  girl  under  eighteen  years  of  age,  it  appeared  that  tlic  girl 
was  brought  to  the  house  of  defendant  by  another;  that  defendant  objected 
to  admitting  her,  owing  to  her  apparent  youth,  whereupon  she  represented 
lierself  to  be  over  eighteen  years  old;  and  it  appeared  that  defendant  was 
tlie  keeper  of  a  bawdy-house— it  is  compatent  for  defendant,  in  order  to 
rebut  the  presumption,  raised  by  the  facts  of  the  youth  of  the  prosecutrix 
and  her  presence  in  the  house,  that  she  was  enticed  there,  to  show  that  de- 
fendant permitted  the  girl  to  remain  at  her  own  request,  and  for  the  sole 
purjwse  of  getting  a  home  for  her  at  that  town,  and  that  she  afterward 
made  an  effort  to  get  such  a  home  for  her,  and  that  while  in  her  house  the 
prosecutrix  did  not  have  sexual  mtercourse  with  any  man.  Brown  v.  State, 
72  Md.  468. 

In  such  a  case  it  is  competent  to  show  that  the  prosecutrix,  at  the 
time  of  the  alleged  enticement,  was  "  a  girl  of  the  town,"  and  that  her 
character  for  chastity  was  bad.    Id. 

Evidence  that  the  mother  of  prosecutrix  had  made  statements  that 
she  could  not  get  a  place  of  service  for  her,  owing  to  her  bad  character; 
that  a  week  aftar  the  prosecutrix  entered  the  house  of  defendant,  her 
mother  asked  that  she  be  sent  away,  if  work  were  not  obtained  for  her  by 
a  certain  diiy;  that  the  prosecutrix  was  at  a  pjvrty  the  night  before  entering 
the  house  of  the  defendant,  where  every  one  was  intoxicated;  and  as  to  the 
motive  of  the  prosecutrix  for  remaining  at  the  house  of  defendant — was 
properly  excluded  as  immaterial.     Id. 

On  an  indictment  for  the  abduction  of  a  girl  for  purposes  of  pros- 
titution, evidence  of  her  unchastity  with  others  after  the  alleged  abduction 
is  irrelevant  and  incompetent.    State  t\  Scruggs,  90  Tenn.  81. 

There  is  no  error  in  the  remark  of  the  court  in  excluding  such  evi- 
dence that,  though  the  girl  turned  out  to  be  a  prostitute  after  she  came 
back,  defendant  can  not  avail  himself  of  that  fact  if  he  had  taken  her  off 
and  debauched  her  prior  thereto.  Id.  (The  two  last  cases  are  reviewed 
and  disapproved  in  tlie  principal  case.) 

Evidence  that  the  girl's  mother  and  sister  were  lewd  women,  and 
had  given  birth  to  illegitimate  children,  is  irrelevant  and  incompetent.  Id. 
Character  of  house  to  which  female  is  taken  may  be  shown.  State  v.  Chi- 
seahall,  103  N.  0.  670. 


ji^;^ 


^rr 


)  ( 


>:  I 


4 


20 


AMERICAN  ORIMLN'AL  REPORTS. 


li 


IIiGOiNS  V.  Commonwealth. 
(94  Ky.  54.) 

Abductiok:    Detention  of  tmman  against  her  will— Insane  icoman— In- 
dictment—Change  of  vemie. 

1.  An  indictment  under  Gen.  St..  C.  29,  Art.  4,  §  9,  providing  that  wliocver 

shall  unlawfully  tako  or  detain  any  woman  against  her  will,  with  in- 
tent to  have  carnal  knowledge  with  Ker,  shall  he  confined  in  the  poni- 
t.Mitiary,  need  not  charge  that  the  accused  acted  maliciously,  willfully 
or  felonioasly. 

2.  The  detenticm  of  an  insane  woman  for  the  purposes  of  carnal  knowledge 

is  "  against  her  will." 
8.  When  petition  for  change  of  venue,  and  affidavits  required  by  law  are 
filed,  tlie  court  has  no  discretion,  and  the  change  of  venue  should  be 
granted. 

Appeal  from  Circuit  Court.  Pulaski  County. 

Barney  P.  Iliggins  was  convicted  of  unlawfully  taking  a 
Avonian  against  ber  will,  with  intent  to  have  carnal  knowledge 
with  her,  and  appeals.    Eeversed. 

W.  A.  Iforrow  and  J.  W.  Cohjar,  for  appellant. 
W.  J.  IJendrlck,  for  the  Commonwealth. 

IIazklrigg,  J.  The  appellant  was  tried,  convicted  and  sen- 
tenced to  the  penitentiary  for  the  term  of  two  years,  U[)on  an 
indictment  under  Sec,  9,  Art.  -i,  C.  29  of  the  General  Stat- 
utes, which  provides  that  "  whoever  shall  unlawfully  take  or 
detain  any  woman  against  her  will,  with  intent  *  *  *  to 
have  carnal  knowledge  with  her  *  *  *  shall  be  confined 
in  the  penitentiary  not  less  than  two,  nor  more  than  seven 
years." 

On  this  appeal  he  urges,  as  grounds  for  reversal,  first,  the 
omission  of  the  word  "  feloniously "  in  the  indictment.  To 
this  it  is  sulHcient  to  say  that  the  acts  mentioned  in  the  statute 
quoted,  when  unlawfully  done,  constitute  the  whole  of  the 
crime  denounced  therein.  It  need  not  be  charged  of  the  accused 
that  he  acted  maliciously,  willfully  or  feloniously.  If  he  be 
charged  in  the  language  of  the  statute  creating  the  crime, 
and  in  the  manner  required  by  it,  then  the  charge  is  complete, 
and  includes  all  that  is  required  to  be  established  in  order  to 
constitute  the  guilt  of  the  accused.    In  common  law  felonies 


IIIGGINS  V.  COMMONWEALTH. 


21 


the  rule  is  difTerent.  See  Kaelin  v.  Com.,  84  Kv.  354;  Ciindijf 
V.  Com.,  SG  Ky.  190. 

Secondly,  the  appellant's  counsel  contend  that  the  statute 
has  no  application  in  this  case,  because  of  the  insanity  of  the 
victim  alleged  to  have  been  unlawfully  detained;  that  the 
crime  must  be  committed  against  a  woman  having  a  will,  cajia- 
ble  of  exercising  it,  and  "  against  her  will."  But  the  authority 
relied  on,  happily  stops  far  short  of  supporting  such  an  in- 
human and  unreasonable  doctrine.  The  generous  principle  of 
the  law  governing  the  case  was  aptly  illustrated  in  the  in- 
struction of  the  lower  court,  whereby  the  jury  was  told  that 
any  act  done  toward  the  alleged  victim  by  the  defendant,  other 
than  acts  of  kindness,  courtesy  or  friendship,  Avere  done  "  against 
her  will." 

i3ut  the  appellant,  after  due  notice,  filed  his  petition  for  a 
change  of  venue,  alleging  that  on  account  of  the  prejudice 
against  him,  and  the  excited  state  of  public  opinion,  he  couUl 
not  have  a  fair  and  impartial  trial  in  Pulaski  county.  He  sui> 
ported  his  jtetition  with  the  affidavits  of  two  credible  witnesses, 
all  in  strict  accordance  with  the  requirements  of  Sec.  2,  Art.  4, 
(\  12,  Gen.  St.  No  other  testimony  was  introduced  or  offered 
I)y  either  pa^'^y.  The  court  overruled  the  motion,  and  dis- 
missed his  ])etition  and  ap])lication  for  removal,  and  of  this  he 
complains.  For  the  commonwealth,  it  is  insisted  that  since  the 
statutory  amendment  of  April  1,  1880,  the  question  of  removal 
is  one  of  discretion  with  the  court,  whereas  heretofore  it  was 
absolutely  incumbent  on  it  to  order  the  change  whenever  the 
defendant  complied  with  the  requirements  of  the  statute.  The 
amendment  reads :  "  And  the  court  shall,  on  said  motion,  hear 
all  witnesses  that  may  be  produced  by  either  ])arty,  and  from 
the  evidence  determine  whether  or  not  the  applicant  is  entitled 
to  change  of  venue."  It  is  evident  that  the  object  of  this 
amendment  was  to  give  the  state  an  opportunity  of  combating 
the  pri7na  facie  case  presented  by  the  petition  of  the  defendant 
and  the  affidavits  of  his  friends.  If  this  opportunity  is  not 
embraced,  the  court  has  no  discretion.  While  the  question 
was  not  directly  presented,  Judge  Holt,  in  delivering  the 
opinion  of  the  court  in  Wilkerson  v.  Com.,  SS  Ky.  29, 
says :  "  Undoubtedly,  if  an  accused,  under  the  Ian-  as 
amende.  1,  presents  his  petition,  accom})anied  by  two  or  more 
affidavits,  and  no  witnesses  are  introduced  in  court  by  either 


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22 


AMERICAN  CRIJIINAL  REPORTS. 


party,  the  cliiin^^o  of  venuo  sliould  bo  granted."  AVc  think 
that'tlic  appelhmt  was  clearly  entitled,  on  the  state  of  case  pre- 
sented, to  have  his  petition  for  removal  oranted. 

"While  the  same  proof  may  not  be  offered  in  the  case  on  its 
return,  it  is  i)roper  to  say  that  the  testimony  of  Trimble  as  to 
the  coiulition  of  the  room  on  the  day  foUowinsr  the  trouble  in 
(piestion  was  improper.  This  room  was  exi)osed  and  used  at 
all  iioursof  the  day  and  night,  and  its  "torn-up"  condition 
twenty-four  hours  after  the  occurrence  proves  nothing,  but,  in 
view  of  Clark's  testimony,  might  be  misleading  and  jn-ejudicial. 

AVe  perceive  no  error  in  the  instructions  of  the  court,  antl 
think  they  embrace  tlie  law  of  the  case.  For  the  reason  in- 
dicated, the  judgment  below  is  reversed,  and  cause  remanded, 
with  directions  to  grant  the  a])pellant  a  new  trial,  and  for  pro- 
ceedings consistent  with  this  opinion. 

I^OTE.— Assault— Detention— Abduction  to  compel  mnrriafje.— Under  Gen. 
St.  Ky.,  C.  29,  Art.  4,  g  9,  providing  that  "  wlioever  sliiill  unlawfully  take  or 
detain  any  woman  against  lier  will  *  *  *  with  intent  to  have  carnal 
knowletlge  with  her  "  shall  be  guilty  of  a  felony,  a  man  who  goes  into  the 
room  of  a  sleeping  girl,  removes  the  bedclothes,  and  exposes  her  person  and 
his  without  awakening  her,  is  guilty  of  the  offense  denounced  by  the  statute. 
Mdlone  V.  Com.,  91  Ky.  307. 

The  accused  was  charged  with  having  talcen  the  prosecutrix  with  force 
and  against  her  will,  with  intent  to  compel  her,  by  force,  menace  and 
iluress,  to  marry  him.  Some  time  after  the  alleged  offense,  he  wrote  her 
two  letters,  in  each  of  which  he  threatened  to  kill  her  if  she  did  not  marry 
him  on  a  certain  day.  fl^i'/(i,  that  these  letters  were  not  relevant.  State  v. 
Muloney,  105  Mo.  10. 

It  was  error  to  charge  that  if  the  accused  detained  the  prosecutrix  in  a 
buggj-  and  drove  her  into  the  country  against  her  will,  that  would  consti- 
tute an  assault  within  the  meaning  of  that  term  as  used  in  an  indictment 
under  Rev.  St.  Mo.,  g  3483,  providing  a  punishment  for  taking  a  woman 
away  against  her  will  to  compel  her,  by  force  or  duress,  to  marry.     Id. 

Person  having  carnal  Jcnoidedge  with  female  relation. —Act,  June  17, 
1887.  provides  that  whoever  shall  unlawfully  detain  any  female,  by  force 
or  intimidation,  in  any  room,  against  her  will,  for  purposes  of  prostitution, 
or  with  intent  to  cause  such  female  to  become  a  prostitute  and  be  guilty  of 
fornication  therein,  is  guilty  of  felony.  Held,  not  to  ajjply  to  a  man  who 
had  carnal  intercouree  with  his  stepdaughter,  against  her  will,  in  his  own 
house.    Bunjield  v.  The  People,  154  111.  640. 

In  this  case  the  Court  says:  Thus  the  act,  by  its  terms,  punishes  one 
who  aids,  abets  or  assists  in  keeping,  confining  or  unlawfully  detaining  any 
female,  against  her  will,  in  any  room,  for  i)urposes  of  concubinage,  and 
has  not,  within  its  terms,  words  which  woidd  inflict  punishment  for  the 
same  act  against  the  single  actor  in  the  crime;  and  this  most  fully  and 
cleai-ly  shows  that  the  object  of  the  legislature,  in  the  adoption  of  the  act, 


BRADSHAW  v.  TFOPLE. 


23 


was  to  reach  that  class  intended  in  the  first  section  of  the  act.  Tlie  sixth, 
seventh  and  ei^htli  instructions  given  for  tlie  poople.wero  based  on  the  theory 
tliat  (.'ontliiement  of  tlie  prosecuting  witnesses  in  a  room,  against  their  will, 
and  hiiving  sexuiil  intercourae  under  such  circumstances,  constitutes  guilt. 
The  statute  does  not  so  declare,  and  it  was  error  to  so  instruct.  This  con- 
struction of  the  words  used  in  the  statute  is  sustained  by  Fahiivstovk  v. 
State,  102  Ind.  150,  and  Com.  v.  Cook,  12  Mete.  (Mass.)  93.  The  enact- 
ment of  the  statute  is  for  the  legislature;  its  construction  and  enforcement 
rest  with  the  court;  and,  however  the  heinousness  of  the  crime  may  appeal 
for  punishment,  less  evil  results  from  a  failure  to  punish  than  from  an 
improper  and  unjust  administration  of  the  law.  Crimes  of  this  character 
may  be  punished  under  other  sections  of  the  criminal  code,  whereby  the 
rights  of  society  and  dignity  of  the  state  can  bo  secured  and  protected. 
Prosecutions  can  only  be  conducted  under  and  in  accordance  with  the  stat- 
utes, which,  when  of  a  penal  character,  are  always  to  be  strictly  construed. 


Beadsiiaw  v.  People. 


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(153  IlL  156.) 
Abduction:  Evidence— Instruction),— Presumption— Misconduct  of  counsel. 


1.  On  n  prosecution  for  abduction,  evidence  that  the  abducted  female,  be- 

fore her  associaiion  with  the  defendant,  attended  Sunday  school  and 
church,  was  a  church  member  and  was  received  into  society,  is  admis- 
sible as  tending  to  fortify  the  presumption  that  her  previous  life  and 
conversation  were  chaste. 

2.  Testimony  as  to  what  the  girl  said  when  she  went  away  with  defend- 

ant, to  show  that  she  was  not  enticed,  but  went  of  her  own  accord,  is 
not  admissible,  it  being  mere  hearsay. 

3.  An  instruction  that  "  the  presumption  of  law  is  that  the  life  and  pre- 

viou!-;  eh  iracter  of  the  prosecuting  witness  were  chaste  "  is  correct. 

4.  It  is  proper  to  refuse  to  instruct  the  jury  that  the  presumption  of  chas- 

tity "does  not  continue  after  the  production  of  any  competent  evidence 
to  the  contrary,"  since  it  assumes  that  any  competent  evidence,  how- 
ever slight,  and  without  reference  to  its  credibiUty,  would  overcome  a 
rebuttable  presumption  of  law. 

5.  Where  the  prosecuting  attorney  says  to  the  jury:    "  The  enticing  and 

taking  of  the  prosecuting  witness  is  not  denied  by  the  defendant,"  and 
the  court  sustains  an  objection  to  the  remark,  and  says,  in  the  presence 
of  the  jury,  that  defendant,  by  his  plea  of  not  guilty,  denied  everj'- 
thing,  the  remark  does  not  constitute  reversible  error. 

Error  to  Circuit  Court,  Christian  County;  the  lion.  James 
Creighton,  Judge,  presiding. 

Indictment  of  William  Bradshaw  for  abduction.  Defend- 
i  nt  was  convicted,  and  he  brings  error.    Affirmed. 


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24 


AMERICAN  CRIMINAL  REPOUm 


./.  E.  Hixjan,  J.  L.  Drennan  anil  J.  G.  D/rniutit,  for  pliiint- 

ifr  ill  oiTor. 

JA  7'.  }fnhmcy,  Atty.  (Ji^n.,  ./.  6'.  Vnuihiun,  State's  Atty., 
r.  /.  *S(v>/!V A/,  J/:  L.  Nvmll  unil  /.  6^  JlcIJrufc,  fur  the  People. 

Wir.Ki.v,  C.  J.  At  the  Novombor  term,  ISO;^  of  tlio  court 
l)el()\v.  pliiintiff  in  error  was  cctnvicted  of  tlie  crinio  of  entic- 
in<,^  iind  taking  one  Ada  Silvens,  an  unmarried  female,  of  chasto 
lit^'  and  conversation,  from  lier  parents'  lumse,  f(«r  the  ])ur|)oso 
of  prostitution  and  concul)inage,und  si'Uteneed  to  the  peniten- 
tiary for  a  term  of  five  years.  To  reverse  tluu  judgment,  this 
writ  of  ci-ror  is  prosecuted. 

Ada  Silvens  lived  with  lier  parents  on  a  farm  in  Cliristian 
county,  tliis  State.  She  was  about  eighteen  years  old  at  the 
time  of  tlie  alleged  abduction,  and  unmarried,  riaintilf  in 
error  Avas  a  married  man.  thirty-five  years  of  age.  living  with 
his  wife  in  the  same  county.  In  ^ay,  ISDJJ,  he  abandoned  his 
family,  and  with  the  girl,  Ada,  left  the  state.  On  June  Kith, 
following,  lie  wrote  a  letter,  adilressed  to  her  jiai-ents,  which 
was  otferetl  in  evitlence  by  the  prosecution,  in  whicli  lie  con- 
fessed that  ]  )  hail  taken  their  daugiiter  from  her  home,  and 
then  had  her  with  him. 

The  father  of  the  girl  was  permitted  to  testify,  over  the  ob- 
jection of  counsel  for  the  defendant,  in  substance,  that  prior 
to  her  association  with  defendant  she  attended  Sunday  school 
and  church,  was  a  member  of  the  church,  associated  with  the 
young  people  of  the  neighborhood  generally,  and  was  received 
in  their  society  as  other  young  ladies  of  the  community.  It  is 
insisted  that  this  testimony  was  irrelevant,  and  therefore  in- 
competent. The  purjiose  of  it  Avas  to  prove  the  chaste  life 
and  con\T3rsation  of  Ada  Silvens.  It  was  not  necessary  for 
the  prosecution,  in  the  first  instance,  to  offer  any  evidence  on 
that  subject.  "  The  presumption  of  law  is,  her  previous  life 
and  conversation  were  chaste,  and  the  07ii(ft  was  uj)on  the  de- 
fendant to  show  otherwise."  Slocma  v.  People^  90  III.  274; 
Andre  v.  State,  5  Iowa,  3S9;  State  v,  Hhjgins,  32  Iowa,  204;  Pco- 
fle  V,  Brewer,  27  Mich.  IBS.  This  evidence  tended  to  fortify 
that  presumption.  Wharton,  treating  of  the  crime  of  seduc- 
tion, speaking  of  chaste  character,  says :  "  This  is  necessary  to 
the  prosecution's  case,  and  may  be  inferred  from  general  evi- 
dence offered  by  the  prosecution."    2  Whart.  Cr.  Law,  2G72 


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25 


S/(tf>'  V.  Shcan,  32  Iowa,  88;  People  v.  Mt'Arilh\h  rni-kcr,  Cr. 
K.  ISO,  It  socms  clear  that  the  facts  testified  to  bv  the  father 
tended  to  prove  a  course  of  life  by  iiis  (iaiii,diter,  from  wliich 
hereliastity  mi<^ht  reasonably  be  inferred.  There  was  no  error 
in  adniittin*,^  the  testimony. 

It  is  next  objected  that  the  court  refused  to  allow  the  defend- 
ant to  prove  what  the  girl  had  said  as  to  ■why  she  went  away 
with  him.  It  is  said,  if  she  went  of  her  own  accord,  tiiere  was 
no  ^i'uilt.  If  by  this  is  meant  that  slie  was  not  enticed  away 
by  the  defendant,  he  could  not  be  legally  convicted,  the  state- 
ment is  certainly  true:  but  the  question  hero  is,  can  that  fact  be 
proved  by  mere  hea*^  ?  What  she  or  any  one  else  may  have 
said  as  to  why  she  as  clearly  incompetent. 

The  sixth  instruction  given  at  the  recjuest  of  the  i)rosecu- 
tion  told  the  jury  "that  tho  pra.sumption  of  law  is  tiiat  the 
life  and  previous  character  of  the  prosocuting  witness,  Ada 
Silvens,  wore  chaste,  .' nd  the  o>i?«*  is  upon  tho  defendant  to 
))ro(luce  sufficient  evidence  to  overcome  such  presumi)tion." 
It  is  contendec'  that  the  use  of  tho  words  "and  ))reviouschai'- 
acter"  renders  this  instruction  erroneous.  An  attemi)t  is 
made  to  show  that  by  these  words  tho  defendant  was  re- 
quired to  overcome  a  presumi)tion  which  the  law  does  not 
raise,  viz.,  of  chaste  previous  character.  There  is  no  jn'actical 
difference  in  the  meaning  of  the  words  "  a  chaste  life  and 
conversation,"  used  in  the  statute,  and  "a  chaste  life  and 
previous  character"  The  word  "conversation,"  as  used  in 
tho  statute,  means  "manner  of  living,"  "habits  of  life," 
"conduct."  If  tho  words  "a  previous  character,"  as  used  in 
the  instruction,  did  not  moan  substantially  tho  same,  they 
are,  to  our  minds,  meaningless.  They  might  properly  have 
l)oon  omitted  from  the  instruction,  but  wo  are  unable  to  dis- 
cover in  what  manner  the  use  of  them  ])laced  any  greater 
bunion  upon  tho  defendant  than  would  have  boon  done  by  the 
instruction  without  them. 

Tho  further  objection  that  it  was  error  for  tho  court  to  toll 
tho  jury  that  the  presumption  of  law  was  that  the  life  of  the 
prosecuting  witness  was  chaste,  Avithout  making  that  pro- 
sumption  dependent  upon  any  evidence,  is  fully  met  by  the 
Slocum  case,  sxipra.  Tho  general  rule  in  such  cases  is  that 
"  chaste  character  will  be  presumed,  and  the  burthen  is  on  the 
defendant  to  impeach  it,  notwithstanding  the  presumi)tion  of 


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innocence  in  liis  favor."  See  cases  cited  in  87  Am.  Dec,  note 
oil  \n\i!;o  4< »<>  {State  v.  Carmn).  Counsel  seemed  to  ti-eat  the 
presumption  spoken  of  in  the  instruction  as  one  of  fact,  and 
tliey  say  "  the  court  has  no  rif^ht  to  say  to  the  jury  what  pre- 
sun\i)ti()n  of  fact  arises."  The  presumption  of  chastity,  wiiicli 
arises  in  cases  of  this  kind,  is  not  one  of  fact,  but  a  disputa- 
ble or  rebuttable  presumption  of  law.  1  Greenl.  Ev.,  §  33. 
Judge  Cooley  said  in  People  v.  Brewer,  supra,  speaking  of  an 
instruction  which  told  the  jury  that  the  law  ])resunies  woman 
to  be  chaste  until  the  contrary  is  shown,  "  Wo  believe  this 
instructioii  to  be  correct.  The  presumption  of  law  should  be 
in  accordance  with  the  general  fact,  and  whenever  it  shall  be 
t-ne  of  any  country  tliat  the  women,  as  a  general  fact,  are  not 
c''i<ste,  tiie  foundation  of  civil  society  will  be  broken  up. 
iortunately,  in  our  country,  an  unchaste  female  is  compara- 
tively a  rare  exception  to  the  general  rule,  and  whoever  relies 
upon  tlie  existence  of  the  exception  in  a  particular  case  should 
be  required  to  prove  it."  The  instruction  here  objected  to  re- 
quired no  more  of  the  defendant,  and  was  properly  given. 

The  court  refused  to  instruct  the  jur}'^,  at  the  defendant's 
request .  "  While  it  is  true  that  the  law  presumes  that  the 
prosecuting  witness,  Ada  Silvens,  was  of  chaste  life  and  con- 
versation, yet  such  is  only  a  bare  presumption,  and  can  not  be 
considered  in  rebuttal  to  any  competent  evidence  tending  to 
prove  she  was  not.  Such  ])resumption  does  not  continue  after 
the  production  of  any  competent  evidence  to  the  contrary." 
Tins  ruling  is  assigned  for  error.  We  said  in  Graves  v.  Colirdi, 
90  111.  012:  "Primarily,  the  rebuttable  legal  presumption 
affects  only  the  burden  of  proof,  but,  if  that  burden  is  sliiftotl 
back  upon  the  party  from  whom  it  first  lifted  it,  tlicn  tlie  ])re- 
sumption  is  of  value  only  as  it  has  probative  force,  except  it  be 
that  on  the  entire  case  the  evidence  is  equally  balanced,  in 
which  event  tlie  arbitrary  power  of  the  presumjition  of  law 
would  settle  the  issue  in  favor  of  the  projwnent  of  the  pre- 
sumption." Under  that  rule  the  request  was  properly  refused. 
The  instruction  assumes  that  any  competent  evidence,  how- 
ever slight,  will  overcome  a  rebuttable  presumption  of  law,  ami 
that  without  reference  to  its  credibilitv. 

Another  ground  of  reversal  urged  is  that  the  defendant  was 
prejudiced  before  the  jury  by  the  misconduct  of  the  State's  At- 
torney.   We  have  examined  the  several  grounds  upon  which 


BRADSHAW  v.  PEOPLE. 


21 


this  complaint  is  based,  and  find  no  sufficient  cause  for  saying 
the  trial  was  not  fairly  conducted  on  behalf  of  the  people.  It 
seems  that  the  prosecutor,  in  his  opening  argument  to  the  jury, 
used  the  language,  "  the  enticing  and  taking  of  the  prosecut- 
ing witness  is  not  denied  by  the  defendant."  An  objection  by 
counsel  for  the  defendant  was  sustained,  the  court  saying  in 
the  presence  of  the  jury  that,  by  his  plea  of  not  guilty,  the 
defendant  denied  everything.  But  counsel  say  this  did  not 
remove  the  injurious  effect  of  the  remark,  and  they  treat  it  as 
an  allusion  to  the  fact  that  the  defendant  had  not  testified  in 
his  own  behalf.  Citing  Austin  v.  People,  102  111.  201,  and 
A)i<jclov.  Peo2)le,SiQ\\\.2i)^.  The  cases  are  not  in  point.  In 
the  Aimthi  case  the  attorney  said,  "the  defendant  has  not 
testified  on  this  trial."  A  direct  and  positive  violation  of  the 
statute.  In  the  Aiigelo  case  a  direct  allusion  was  made  to  the 
fact  that  the  defendant  "  was  not  placed  on  the  stand  as  wit- 
ness." Here  no  reference  was  made  to  the  defendant's  not 
testifying,  except  that  the  language  used  could  be  so  construed, 
and  might  have  been  so  understood  by  the  jury.  For  that 
reason  the  court  properly  withdrew  it  from  their  considera- 
tion. We  do  not,  however,  regard  the  statement  as  an  iniiica- 
tion  of  misconduct  on  the  part  of  counsel,  or  an  attempt  to 
evade  the  statute,  to  the  prejudice  of  the  defendant.  Counsel 
may  properly,  for  the  purjwscs  of  argument  to  the  jury,  state 
what  facts  he  understands  not  to  be  denied,  and  the  remarks 
here  objected  to  might  fairly  have  been  intended  to  do  nothing- 
more. 

It  is  finally  objected  that  the  verdict  of  the  jury  was  not 
authorized  by  the  evidence.  There  is  and  could  be  but  one 
basis  for  this  contention;  and  that  is  that,  all  the  evidence  con- 
sidered, the  previous  chastit}'^  of  Ada  Silvens  was  not  ])roved. 
Every  other  element  of  the  crime  was  proved  by  his  own  con- 
fessions in  his  letter  to  the  girl's  parents.  Ji^eitheris  there  in 
that  letter  the  slightest  insinuation  against  her  virtue  prior  to 
liis  association  with  her. 

In  support  of  a  motion  for  continuance,  he  made  affidavit 
that  an  absent  witness  would  testify  that  during  the  year 
ISDO,  1891  and  1892,  he  had  frequently  had  sexual  intercourse 
with  her.  To  avoid  a  continuance,  the  ])rosecution  admitted 
that  the  witness  would,  if  present,  so  testify,  and  that  was  all 
the  evidence  introduced  by  the  defendant  tending  to  prove  uu- 


r 


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^f- 


■•^  j|w«yi  II. I M" 


28 


AMERICAN  CRIMINAL  REPORTS. 


cliastity,  and  it  was  contradicted  by  the  testimony  of  tlie  girl. 
But  her  truthfulness  is  questioned  on  the  ground  that  she 
answered  questions  hesitatingly,  evasively,  etc.  The  criticism 
upon  her  testimony  is  justified  by  the  record,  but  we  do  not 
agree  with  counsel  in  their  contention  that,  therefore,  the  jury 
should  have  disbelieved  her.  The  court  and  jury  before  whom 
she  testified  could  best  judge  whether  her  hesitancy  and  seem- 
ing reluctance  in  answering  questions  came  from  a  disposi- 
tion, with  or  without  inij)roper  influences,  to  favor  the 
defendant.  They  had  a  right  to  believe  her,  rather  than  the 
witness  who  would  have  sworn  to  having  had  intercourse  with 
her. 

We  find  no  reversible  error  in  the  record.  We  think  plaint- 
iff in  error  was  fairly  tried  and  properly  convicted.  The 
judgment  of  the  Circuit  Court  will  be  alliraiod. 

Judgment  affirmed. 


Note.— Tl7ia<  constitutes.— The  taking  away  of  a  female  under  eigliteen 
yeai-s  old  for  the  purpose  of  concubinage,  renders  tlie  defendant  guilty, 
whether  or  not  he  actually  had  sexual  intercourse  with  hor.  StrJe  v.  likh- 
ardson,  117  Mo.  586. 

The  taking  away  of  a  girl  under  age  for  the  purpose  of  intercourse  on  a 
single  occasion,  will  not  support  a  conviction  for  abduction  for  the  pur|K)so 
of  concubinage.  State  v.  Feasd,  74  Mo.  52i,  overruled;  State  v.  Wilkinson 
121  Mo.  4a5. 


State  v.  ]\Iorrow. 

(40  S.  C.  221.) 

Abortion:   Administering  drug— Jurisdiction. 

1.  Wliere  the  evidence  excepted  to  is  not  incorporated  into  the  record, 

its  admission  can  not  be  reviewed. 

2.  A  person  who  gives  a  woman  a  drug  with  intent  to  cause  her  to  abort 

may  be  convicted,  though  the  abortion  was  in  fact  caused  by  the 
use  of  instruments. 

3.  Tlie  courts  of  South  Carolina  have  jurisdiction  of  defendant  for  the 

olfense  of  advising  and  procuring  a  woman  of  that  state  to  take  a  drug 
with  intent  thereby  of  causing  lier  to  abort,  (18  St.  547,)  tlumgh  the 
drug  was  pro(!ured  by  defendant  in  another  Btute,  and  seat  to  the 
woman  by  mail. 


STATE  V.  MORROW. 


29 


Aii]>Hal  from  General  Sessions  Circuit  Court  of  Richland 
County;  W.  II.  Wallace,  Judge, 

James  II.  Morrow  was  convicted  of  administerinff  medicine 
to  a  woman  with  intent  to  cause  an  abortion,  and  appeals. 
AlKrmed. 

Following  is  the  Court's  charge  to  the  jury,  together  with  its 
reasons  for  overruling  the  plea  to  jurisdiction : 

"(ientlemen  of  the  Jury:  The  real  issue  in  the  case,  or 
issues,  are  within  a  narrow  compass,  and,  when  I  have  explained 
them  to  you,  I  will  have  nothing  more  to  say.  The  indict- 
ment is  brought  under  the  following  statute:  'That  any  per- 
son who  shall  administer  to  any  woman  with  child,  or 
prescribe  foi'  any  such  woman,  or  suggest  to,  or  advise,  or 
procure  her  to  take  any  medicine,  substance,  drug,  or  thing 
whatever,  or  who  shall  use  or  employ,  or  advise  the  use  or 
emi)U)yment  of,  any  instrument  or  other  means  of  force  wliat- 
ever,  with  the  intent  thereby  to  cause  or  ])rocure  the  miscar- 
riage, or  abortion,  or  premature  labor  of  any  such  woman, 
unless  the  same  shall  have  been  necessary  to  preserve  her  life, 
or  the  life  of  such  child,  shall,  in  case  the  death  of  such  child 
or  such  woman  result,  in  whole  or  in  part,  therefrom,  be 
deemed  guilty  of  a  felony.'  There  are  two  counts  in  the  in- 
dictment, one  charging  the  defendant  with  having  procured 
and  advised  the  taking  of  a  certain  drug  with  the  intent  to 
protluce  abortion,  and  that,  in  consequence  of  such  abortion, 
tlie  death  of  the  woman  was  produced.  That  is  the  first  count. 
That  is  your  first  inquiry — whether  or  not  this  defendant  did 
that.  If  ho  did,  he  is  guilty,  under  this  act;  if  he  did  not.  he 
is  not  guilty,  under  this  first  section  of  the  act.  In  order  to 
convict  iiim  under  this  act  and  on  this  indictment,  vou  must 
be  satisfied  beyond  a  reasonable  doubt  of  his  guilt.  You  don't 
decide  this  case  as  you  decide  cases  on  the  civil  side  of  the 
court,  b\'  the  preponderance  of  the  testimony,  because  when- 
ever a  defendant  is  brought  into  court  and  tried  on  a  charge 
of  any  violation  of  the  criminal  laws  of  the  state,  no  matter 
how  small  or  inferior  the  crime  may  be,  he  comes  into  court 
under  the  legal  presumption  of  innocence.  Every  man,  in 
other  words,  is  presumed  to  be  innocent  until  he  is  proven 
guilty;  but,  when  the  testimony  in  this  case  establishes  his 
guilt  l)eyond  a  reasonable  doubt,  then  the  presumption  of  in- 
nocence fades  out  of  the  case,  and  the  jury  must  so  find.    But, 


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80 


AMERICAN  CRIMINAL  REPORTS. 


■;l 


unless  that  presumption  of  innocence  is  reljutted,  it  stands  in 
lieu  of  proof  of  innocence;  and  it  so  stands  until  the  weight  of 
evidence  satisfies  the  jury  beyond  a  reasonable  doubt  of  his 
guilt.  And,  when  it  does,  then  he  must  be  found  guilty;  if  it 
does  not  do  that,  he  must  be  a-quitted.  The  second  count  in 
the  indictment  is  brought  under  the  second  clause  or  section  of 
this  statute,  and  that  clause  of  the  statute  is  as  follows :  '  That 
any  person  who  shall  administer  to  any  woman  with  child,  or 
prescribe,  or  procure,  or  provide  for  any  such  woman,  or  advise 
or  procure  any  such  woman  to  take,  any  medicine,  drug,  sub- 
stance, or  thing  whatever,  or  shall  use  or  employ,  or  advise 
the  use  or  employment  of,  any  instrument  or  other  moans  of 
force  whatever,  with  intent  thereby  to  cause  or  procure  the 
miscarriage,  or  abortion,  or  premature  labor,  of  any  such 
woman,  shall,  upon  conviction  thereof,  be  punished,'  etc.  That 
section  is  the  same  as  the  other,  as  far  as  it  goes.  The  other 
provides  that  if  the  defendant  shall  do  what  is  in  this  section, 
and  the  death  of  the  woman  result,  then  his  crime  is  a  felony. 
If  he  should  do  what  this  section  provides,  and  no  death  shouhl 
result  therefrom,  but  only  an  intent  to  procure  abortion  is 
established  against  him,  by  the  means  recited  in  this  statute, 
then  the  act  does  not  declare  that  act  to  be  a  felony;  and,  in 
order  to  convict  him  of  that,  you  will  have  to  be  satisfied 
beyond  a  reasonable  doubt  that  he  attempted  to  procure  an 
abortion — intended  to  do  it — by  the  means  stated  here  in  the 
section  I  have  read  to  you.  Those  are  the  issues,  those  are  the 
only  issues.  Whether  they  have  been  proven  or  not  is  for  you 
to  decide.  AVhether  they  have  been  proven  beyond  a  reason- 
able doubt  is  for  you  to  determine  for  yourselves.  If  you  are 
satisfied  beyond  a  reasonable  doubt  that  either  or  both  of  these 
offenses  are  made  out,  you  will  have  to  convict  him  according 
to  the  degree  of  offense  described  in  the  act  and  set  forth  in 
the  indictment.  If  you  are  not  satisfied  beyond  a  reasonable 
doubt  that  he  procured  an  abortion,  intending  to  do  it  by  the 
means  prescribed  in  the  act,  you  will  have  to  say  '  Not  guilty ' 
on  the  first  count.  If  you  are  of  opinion,  and  are  satisfied  of 
it,  beyond  a  reasonable  doubt,  that  he  attempted  to  ])rocure 
an  abortion— intended  to  do  it- -by  the  means  set  out  here  in 
this  act,  but  that  such  means  did  not  accomplish  his  purpose, 
but  that  the  abortion  was  procured  by  other  means,  to  which 
he  was  not  a  party,  then  you  can  not  convict  him  on  the  first 


STATE  V.  MORROW. 


31 


count,  but  may  on  the  second,  if  you  are  satisfied  beyond  a 
reasonjil)le  doubt. 

" The  solicitor  asks  me  to  charge  you:    *That  if  the  jury 
believe  from  the  evidence,  beyond  a  reasonable  doubt,  that  the 
defendant,  James  II.  Morrow,  administered  to  Colic  Fowler 
while  with  chihl,  or  prescribed  or  procured  or  provided  for 
said  woman  while  with  child,  or  advised  or  procured  said  Colie 
Fowler,  while  with  child,  to  take,  any  medicine,  drug,  sub- 
stance, or  thing  whatever,  with  intent  thereby  to  cause  or 
procure  the  miscarriage  or  abortion  or  premature  labor  of  said 
Colie  Fowler,  he  is  guilty  of  the  offense  charged  in  the  indict- 
ment.'   I  charge  you  that,  in  its  application  to  the  second 
count  in  the  indictment.    That  request  does  not  contemplate 
the  death  of  the  woman.    *  Second.     That,  under  the  second 
section  of  the  act,  it  is  not  necessary  to  prove  that  the  defend- 
ant actually  administered  the  noxious  drug,  or  actually  advised 
the  use  of  any  instrument  or  any  other  means,  to  bring  about 
an  abortion;  but  that,  if  the  jury  believe  beyond  a  reasonable 
doubt  that,,  from  the  evidence  in  the  case,  the  defendant,  by 
his  counsel  and  advice,  induced  the  deceased  to  resort  to  any 
such  means,  or  to  make  any  such  effort  to  bring  about  the 
abortion  or  premature  birth,  then  the  defendant  is  guilty 
under  the  second  count  of  the  indictment.'     I  charge  you  that. 
There  is  no  difTerenco  of  opinion  on  the  other  side  in  regard 
to  it.    I  do  not  know  that  it  is  necessary  I  should  say  any- 
thing else  to  you.    I  have  undertaken  to  make  as  clear  as  I 
could  what  the  act  is.     I  have  undertaken  to  make  clear  to 
you  what  the  real  issue  of  the  case  is — what  you  have  to  de- 
cide — and  that  issue  is  one  of  fact.     Did  the  defendant,  by 
anvthing  he  did  within  the  scope  of  the  means  described  in  the 
act,  endeavor  to  procure  abortion  upon  Colie  Fowler,  and  that, 
in  consequence  of  such  intent  and  conduct  upon  his  part,  an 
abortion  was  produced,  and  death  ensued  ?    If  you  are  satisfied 
beyond  a  reasonable  doubt,  he  is  guilty,  on  the  first  count.     If 
you  are  not  satisfied  beyond  a  reasonable  doubt,  you  must 
acquit  him  on  the  first  count.     If  you  should  acquit  him  on 
the  first  count,  then  you  may  inquire  as  to  the  second  count, 
which  merely  charges  him  with  the  intent  and  an  effort  to 
procure  the  abortion.     If  you  are  satisfied  beyond  a  reasonable 
doubt  that  he  did,  then  you  must  convict  him  on  that  count; 
if  you  are  not  satisfied  beyond  a  reasonable  doubt  that  he  did, 


If 


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A 


r  5? 


'i 


'^T^ 


32 


AMERICAN  CRIMINAL  REPORTS. 


then  you  must  acquit  him  on  the  second  count.  If  you  aro 
not  Siitisticd  beyond  a  reasonable  doubt  that  the  defentUmt  is 
guilty,  why,  you  will  have  to  sny  'Not  guilty.'  If  you  are 
satisfied  beyond  a  reasonable  doubt  that  he  is  guilty  on  the 
first  count,  then  you  may  simi)ly  write  the  word  '  C4uilty '  on 
the  back  of  the  indictment,  for  that  will  include  it.  But  if 
you  are  not  satisfied  beyond  a  reasonabb  doubt  that  he  is 
guilty  on  the  first  count,  and  are  satisfied  beyond  a  reasonable 
doul)L  that  he  is  guilty  on  the  second  count,  then  say  '  Not 
guilty'  on  the  first  count,  but  'Guilty'  on  the  second  count. 
If  you  are  not  satisfied  beyond  a  reasonable  doubt  that  he  is 
guilty  of  either,  say  '  Not  guilty.'    Take  the  record." 

Jud"-e  ]\[elton  (for  defendant):  "The  rule,  as  I  understand 
it,  is  that  the  plea  with  reference  to  the  jurisdiction  of  the 
court  can  be  entertained  at  any  time.  Now,  I  beg  to  say  to 
the  court  that  I  interposed  the  i)lea  at  the  very  first  moment 
I  could,  because  it  couldn't  be  interposed  except  during  the 
argument." 

The  Court:  "That  is  not  a  matter  for  the  jury,  which  is 
the  reason  I  have  said  nothing  to  them  about  it.  It  is  a  matter 
entirely  for  the  court.  I  may  say  I  think  the  court  has  juris- 
diction. I  own  there  is  room  for  difference  of  opinion  about 
it;  but,  from  what  thinking  I  have  been  able  to  d<i  in  regard 
to  it,  I  have  reached  the  conclusion  that  the  court  has  juris- 
diction, for  this  reason:  The  act  alleged  was  committed  in 
this  state.  To  illustrate :  Suppose  a  man  in  a  foreign  juris- 
diction should  procure  a  firearm,  and  charge  it  with  suitable 
ammunition,  intending  to  use  it  against  a  person  in  this  state. 
So  far  there  is  no  crime,  no  offense,  so  far  as  I  know,  against 
the  law  of  any  foreign  jurisdiction — not  a  matter  of  which  any 
foreign  jurisdiction  could  take  cognizance.  But  if  he  comes 
in  this  state,  having  prepared  himself,  formed  his  intention  in 
a  foreign  jurisdiction,  and  executes  his  purpose  here,  the  offense 
is  committed  here,  and  he  is  within  the  jurisdiction  of  this 
court.  Suppose  a  man  in  a  foreign  jurisdiction  pre])ares  what 
is  sometimes  described  as  an  '  infernal  machine,'  intending  to 
use  it  upon  a  person  in  this  state.  His  intention  is  formed, 
and  the  means  of  death  are  prepared  in  a  foreign  jurisdiction — 
no  offense  committed  still.  But  when  he  comes  in  this  juris- 
diction, or  sends  it  into  this  jurisdiction,  there  is  no  offense  if 
the  implement  is  never  delivered,  if  it  couldn't  be  delivered 


STATE  V.  MORROW. 


88 


i 


by  the  express  company,  if  it  should  be  sent  by  means  of  that 
agency — no  offense  committed.  Only  committed  when  the 
instrument  is  delivered,  and  perhaps  the  explosion  took  place; 
then  the  offense  is  committed.  No  offense  has  been  commit- 
ted within  the  jurisdiction  of  any  foreign  power,  of  which  that 
power  could  take  cognizance — nothing  for  which  he  could  be 
tried.  If  he  is  not  responsible  here,  he  is  not  responsible  any- 
where. Tlio  a])plication  of  this  illustration  to  the  case  in  hand, 
1  think,  is  obvious.  A  man  in  a  foreign  jurisdiction  (we  will 
take  a  supposititious  case)  only  prepares  the  means  of  executing 
an  unlawful  purpose  in  this  state,  intending  to  do  it,  and  it  is 
transmitted  by  an  agency.  Up  to  that  time  no  offense  has 
been  committed — no  offense  within  the  jurisdiction  of  a  foreign 
power  whatever.  He  can't  be  tried  there  for  what  has  been 
done.  If  he  can't  be  tried  here,  he  can't  be  tried  anywhere. 
Suppose  done  in  the  State  of  New  York.  The  State  of  New 
York  can  not  try  a  citizen  of  its  own  for  a  violation  of  the  laws 
of  this  State;  it  can  only  try  a  citizen  for  the  violation  of  its 
own  laws.  Upon  the  supposition  that  he  has  simply  prepared 
the  means  of  doing  an  unlawful  act,  intends  to  put  them  in 
operation,  but  has  not  done  it,  can't  do  it,  there  must  be  some- 
thing in  which  the  court  can  act,  something  it  can  take  hold  of, 
in  order  to  give  the  court  jurisdiction  to  try  him.  The  act  is 
committed  in  this  state,  and  is  not  committed  until  the  delivery 
of  the  unlawful  means  for  the  unlawful  purpose  is  accomplished. 
That's  my  view  of  it.  I  think  this  state  would  have  jurisdic- 
tion of  this  offense  if  the  facts  alleged  are  true." 

Defendant's  exceptions : 

"  The  defendant,  James  H.  Morrow,  excepts  to  the  charge 
and  rulings  made  by  the  Honorable  William  H.  Wallace,  pre- 
siding judge,  on  the  trial  of  this  case: 

"  (1)  For  that  his  Honor  held  that  the  Court  of  General 
Sessions  for  Richland  County,  South  Carolina,  had  jurisdiction 
to  try  and  determine  the  charge  against  the  defendant,  James 
H.  Morrow,  for  abortion,  notwithstanding  that  it  appeared  in 
the  evidence,  and  was  undisputed,  that  the  said  James  H.  Mor- 
row was  not  in  this  state  at  the  time  the  alleged  abortion  was 
committed;  and  it  did  not  appear  that  said  defendant,  James 
H.  Morrow,  '  inflicted  any  injury'  upon  the  said  Colie  Fowler. 

"  (2)  For  that  his  Honor  ruled  in  substance,  that  if  the  said 
James  II.  Morrow,  being  without  this  state,  transmitted  to  the 
8 


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3^  AMERICAN  CRIMINAL  REPORTS. 

said  Colic  Fowler  the  means  of  bringing  on  an  abortion,  and 
advised  its  use,  and  the  said  Colie  Fowler,  without  being  thereto 
compelled  by  force  or  duress  of  any  kind,  made  use  of  said 
means,  by  reason  whereof  she  died,  such  bare  transmission  of 
the  means  of  procuring  an  abortion,  and  suggestion  to  use  the 
same,  constitutes  '  the  infliction  of  an  injury,'  within  the  pur- 
view of  the  statutes  of  this  state. 

"  (?^  For  that  his  Honor  held  that  the  transmission  by  the 
said  James  H.  Morrow,  he  being  at  the  time  without  the  state, 
to  the  said  Colie  Fowler,  being  within  the  state,  of  the  means 
of  doing  an  unlawful  act,  is  the  doing  of  such  unlawful  act  by 
the  saicf  James  II.  Morrow,  if  the  said  Colie  Fowler  thereafter 
made  use  of  said  means  to  her  hurt. 

"  (4)  For  that  his  Honor  held  that  the  courts  of  South  Caro- 
lina have  jurisdiction  to  try  the  said  James  II.  Morrow  for  the 
crime  of  abortion,  notwithstanding  that  the  evidence,  beyond 
dispute,  established  that  said  James  H.  Morrow  committed  no 
act  in  this  state. 

"  (5)  For  that  his  Honor  held,  in  substance,  that  vm.  act,  viz., 
the  procuring  and  forwarding  an  abortifacient,  done  by  a  per- 
son at  the  time  without  this  state,  and  not  criminal  at  the  place 
where  done,  is  a  crime  triable  and  punishable  by  the  courts  of 
this  state  if  such  abortifacient  be  used  in  this  state,  by  the 
person  to  \,hom  sent,  with  fatal  results. 

"  (G)  For  that  his  Honor  held,  in  substance,  that  an  act,  viz., 
the  procuring  and  forwarding  an  abortifacient,  done  by  a  per- 
son at  the  time  without  this  state,  and  not  criminal  at  the  place 
where  done,  becomes  a  crime  triable  and  punishable  by  the 
courts  of  this  state  if  such  abortifacient  be  used  by  the  person 
to  whom  sent  in  this  state,  without  regard  to  whether  any  re- 
sult is  produced  or  not  by  such  use. 

"  (7)  For  that  his  Honor  held,  in  substance,  that  if  the  said 
James  II.  Morrow  procured  an  abortifacient  at  a  place  beyond 
the  territorial  limits  of  the  State  of  South  Carolina,  and  for- 
warded the  same  to  the  said  Colie  Fowler,  she  being  then 
within  the  limits  of  said  state,  and  the  said  Colie  Fowler  there- 
upon, of  her  own  free  will,  used  the  said  abortifacient,  without 
being  thereto  compelled  by  any  force  or  duress  or  threats  used 
towards  her,  such  act  of  said  defendant,  James  H.  Morrow,  is 
a  crime,  under  the  laws  of  this  state,  and  can  be  tried  and 
punished  by  the  courts  of  South  Carolina. 


STATE  V.  MORROW. 


35 


"(S)  For  that  his  Honor  held  that  a  state  statute  creating 
an  ofFense  not  known  to  the  common  law  is  entitled  to  extra- 
territorial resi)ect. 

"(9)  For  that  his  Honor  held  that  a  state  statute  creating 
an  offense  not  known  to  the  common  law  can  be  violated  by  a 
citizen  of  another  jurisdiction,  being,  at  the  time  of  the  alleged 
violation,  beyond  the  limits  of  the  state  wherein  the  said  sta^ 
ute  is  of  force. 

"  (10)  For  that  his  Honor  charged  the  jury  that  if  they  be- 
lieved beyond  a  reasonable  doubt  that  the  defendant  procured, 
or  attempted  or  intended  to  procure,  an  abortion  by  any  of  the 
means  set  out  and  prescribed  in  the  act  on  that  subject,  they 
must  find  a  verdict  of  guilty  on  the  first  or  second  count,  or 
<;enerallv,  as  the  case  might  be;  whereas  he  should  have  in- 
structed  the  jury  that  the  prosecution  was  limited  in  its  evi- 
dence, and  the  jury,  in  arriving  at  their  verdict,  to  the  means 
(and  the  proof  thereof)  set  forth  in  the  indictment. 

"  (11)  F(jr  that  his  Honor  overruled  defendant's  objection  to 
the  indictment  made  upon  the  ground  that  the  acts  complained 
of  in  the  first  count  thereof  were  not  therein  stated  to  have 
been  done  '  feloniously.' 

"  (12)  For  that  his  Honor  admitted  as  evidence,  in  reply, 
certain  letters  purporting  to  have  been  written  by  the  defend- 
ant." 

Melton  dc  Melton  and  McDonald,  Donglass  tfe  Ohear,  for  ap- 
pellant. 
P.  TI.  Nelson  and  John  G.  Caj^ers,  for  the  State. 

McIvEu,  C.  J.  The  defendant  in  this  case  was  indicted 
under  the  act  of  18S3,  (IS  St.  547,)  entitled  "An  act  to  amend 
tlie  criminal  law  by  providing  for  the  punishment  of  abortion." 
The  only  portions  of  that  act  pertinent  to  the  present  appeal 
are  sections  1  and  2.  Section  1  reads  as  follows :  "  That  any 
person  who  shall  administer  to  any  woman  with  child,  or  pre- 
scribe for  any  such  woman,  or  suggest  to,  or  advise,  or  procure 
her  to  take  any  medicine,  substance,  drug  or  thing  whatever, 
or  who  shall  use  or  employ,  or  advise  the  use  or  employment 
of,  any  instrument  or  other  means  of  force  whatever,  with  in- 
tent thereby  to  cause  or  procure  the  miscarriage,  or  abortion, 
or  premature  labor  of  any  such  woman,  unless  the  same  shall 
have  been  necessary  to  preserve  lier  life,  or  the  life  of  such 


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86 


AMEllICAN  CRIMINAL  REPORTS. 


child,  shall,  in  case  the  death  of  such  child  or  of  such  woman 
results,  in  whole  or  in  part,  therefrom,  be  deemed  guilty  of  a 
felony,'  and  upon  conviction  thereof,  shall  be  punished  by  im- 
prisonment in  the  i)enitentiary  for  a  term  not  more  than  twenty 
years,  nor  less  than  live  years."  Section  2  is  in  the  following 
language:  "That  any  person  who  shall  administer  to  any 
woman"  with  child,  or  prescribe,  or  procure,  or  provide  for  any 
such  woman,  or  advise  or  procure  any  such  woman  to  take, 
any  medicine,  drug,  substance,  or  thing  whatever,  or  shall  use 
or  employ,  or  advise  the  use  or  employment  of,  any  instrument 
or  othei.^  means  of  force  whatever,  with  intent  thereby  to  cause 
or  procure  the  miscarriage  or  abortion,  or  premature  labor,  of 
anv  such  wonuin,  shall,  upon  conviction  thereof,  be  punished 
bv  imprisonment  in  the  penitentiary  for  a  term  not  more  than 
five  years,"  etc. 

The  indictment  contained  two  counts,  the  first  charging  that 
the  defendant  "unlawfully  did  suggest, advise,  induce, and  pro- 
cure one  Colie  Fowler,  a  single  woman,  then  and  tjiere  being 
pregnant  with  child,  to  take  divers  quantities  of  a  certain  per- 
nicious and  destructive  substance,  drug,  or  medicine,  in  the 
form  and  shape  of  pills,  with  intent  to  cause  or  procure  the 
abortion,"  etc.,  and  proceeds  to  allege  that,  by  the  use  of  said 
means,  the  abortion  was  procured,  and  that  the  death  of  the 
said  Colie  Fowler  was  thereby  caused.  In  the  second  count 
the  charge  is  that  the  defendant  *'  unlawfully  did  prescribe, 
procure,  and  advise  one  Colie  Fowler,  a  single  woman,  then 
and  there  being  pregnant  with  child,  to  take  divers  quantities 
of  a  certain  pernicious  and  destructive  substance,  drug,  or  med- 
icine, in  the  form  and  shjipe  of  pills,  with  intent  to  cause  or 
procure  the  abortion,"  etc. 

The  case  came  on  for  trial  before  his  Honor,  Judge  Wallace, 
and  a  jury,  when  there  was  much  testimony  taken,  and,  in  the 
opening  argument  of  the  counsel  for  the  defense,  a  plea  to  the 
jurisdiction  of  the  court  was  interposed,  upon  grounds  which 
will  hereinafter  appear;  and,  after  argument  thereon,  the  plea 
to  the  jurisdiction  was  overruled,  and  the  case  was  submitted 
to  the  jury  under  the  charge  of  the  Judge,  which  should  be 
incorporated  in  the  re])ort  of  this  case,  together  with  his  rea- 
sons for  overruling  the  plea.  The  jury  having  rendered  a 
verdict  of  guilty,  and  sentence  having  been  passed  upon  the 
defendant,  he  api)eals,  upon  the  several  exceptions  set  out  in 


STATE  V.  MORROW. 


87 


tlio  record,  which  need  not  be  repeated  here,  but  which  should 
likewise  apj)ear  in  the  rej)ort  of  the  case. 

AVe  ])ropose  to  take  up  these  exceptions  in  their  inverse  or- 
der. The  twelfth  exception  imputes  error  in  admitting  as 
evidence,  in  repl}',  certain  letters  purporting  to  have  been  writ- 
ten by  the  defendant.  This  is  manifestly  based  upon  a  mis- 
conception, for  nothing  of  the  kind  appears  either  in  the  printed 
case  or  in  the  typewritten  copy  of  the  testimony  filed  in  this 
court.  Indeed,  as  no  allusion  was  made  to  this  exception  in 
the  argument  of  counsel  for  appellant,  we  supjiose  it  was  aban- 
doned; but,  whether  abandoned  or  not,  it  certainly  can  not  bo 
sustained,  for  the  reason  indicated. 

The  eleventh  exception  complains  of  error  on  the  part  of 
the  Circuit  Judge  in  overruling  defendant's  exception  to  the 
indictment,  upon  the  ground  that  the  acts  charged  in  the  first 
count  are  not  charged  to  have  been  done  "  feloniously."  Here, 
also,  we  are  unable  to  find  anything  in  the  case  upon  which 
this  exception  can  be  based.  It  does  not  appear  that  the  Cir- 
cuit Judge  was  ever  called  upon  to  make,  or  did  make,  any 
ruling  upon  the  subject.  liesides,  no  such  exception  could  be 
lieard  unless  taken  before  the  jury  were  sworn;  (Act  1887;  19 
St.  829;)  and  there  is  nothing  to  show  that  the  exception  was 
taken  at  the  ])roper  time.  Indeed,  we  presume  from  the  fact 
that  no  allusion  is  made  in  the  argument  submitted  here  to 
this  exception  that  it  is  likewise  abandoned,  but,  whether  this 
is  so  or  not,  the  exception  must  be  overruled. 

The  tenth  exception  is  somewhat  misleading,  and  for  that 
reason  this  exception  is  reproduced  precisely  as  we  find  it  in 
the  record,  with  the  italics  there  found :  "  For  that  his  honor 
charged  the  jury  that  if  they  believed  bevond  a  reasonable 
doubt  that  the  defendant  procured,  or  attempted,  or  intended 
to  procure,  an  abortion  by  ani/  of  the  means  set  ovt  and  pre- 
xcr'ihed  in  the  act  on  that  svhject,  they  must  find  a  verdict  of 
guilty  on  the  first  or  second  count,  or  generally,  as  the  case 
might  be;  whereas  he  should  have  instructed  the  jury  that  the 
prosecution  was  limited  in  its  evidence,  and  the  jury,  in  arriv- 
ing at  their  verdict,  to  the  means  (and  the  proof  thereof)  set 
forth  in  the  indictment."  The  point  of  this  exception,  as  we 
understand  it,  is  that  inasmuch  as  the  statute  under  which  this 
defendant  was  indicted  contemplates  two  distinct  and  differ- 
ent means  by  which  abortion  may  be  caused,  viz.:  (1)  by  the 


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•66 


AMEUICAN  CRIJUNAL  KEPORTS. 


use  of  drugs,  and  (2)  by  the  use  of  instruments,  involving  the 
u|)i»liciiti(jn  ol'  force;  and  inasmuch  as  tlio  indictment  charges 
only  the  first,  no  evidence  could  properly  be  received  tending 
to  show  the  use  of  tho  second,  and,  if  received,  the  jury  should 
have  been  instructed  that  they  couhl  not  find  the  defendant 
guilty  if  they  believed  that  the  abortion  was  caused,  or  at- 
tempted to    bo  caused,  by  the  use  of  instruments,  involving 
some  degree  of  force,  and  not  by  the  use  of  drugs,  as  alleged 
in  the  indictment.     To  make  this  point  available  to  the  defend- 
ant, there  should  have  l)een  some  request  so  to  instruct  the 
jury,  and  a  refusal  to  grant  such  request.    But  no  such  request 
and  no  such  refusal  are  to  be  found  in  the  case.     The  copy  of 
the  testimony  with  whicli  we  have  been  furnished,  in  addition 
to  the  printed  case,  shows  that  there  was  no  testimony  offered 
by  the  prosecution  tending  to  show  that  the  abortion  was 
either  caused  or  attempted  by  the  use  of  any  other  means  than 
those  set  forth  in  the  indictment;  and  it  is  a  well  settled  rule 
that  the  correctness  of  a  judge's  charge  must  be  tested  by  its 
application  to  the  case,  as  made  by  the  pleadings  and  the  evi- 
dence.   The  matter  of  the  use  of  instruments,  involvinjr  some 
degree  of  force,  was  introduced  into  the  case  by  the  defendant 
in  his  cross-examination  of  the  witnesses  for  the  jn-osecution, 
and  in  the  examination  of  the  witnesses  for  the  defense,  for 
the  ])urpose,  doubtless,  of  showing  that  the  abortion  was 
caused,  or  at  least  was  more  likely  to  have  been  caused,  by  the 
use  of  instruments,  rather  than  by  the  use  of  the  means  set  out 
in  the  indictment.    It  was  a  pure  matter  of  defense,  not  em- 
braced in  the  issue  presented  by  the  pleadings ;  and,  if  the 
defentlant  desired  that  the  jury  shoukl  be  instructed  as  to  the 
effect  of  such  defense  if  made  out  by  the  evidence,  liis  proper 
course  was  to  present  a  request  to  that  effect.    But,  in  addi- 
tion to  this,  the  exception  does  not  correctly  represent  the 
judge's  charge.    He  did  not  say  to  the  jury  what  he  is  repre- 
sented to  have  said  in  that  portion  of  the  exception  which  is 
italicized.    He  did  not  use  the  word  "  any,"  which  is  the  im- 
portant word  in  the  exception,  necessary  to  raise  the  point 
upon  which  this  exception  is  based.    On  the  contrary,  the 
judge,  after  setting  out  the  first  section  of  the  act,  under  which 
the  first  count  in  the  indictment  was  framed,  and  stating  what 
Avas  the  charge  in  that  count,  proceeded  to  say :     "  That  is 
your  first  inquiry ;  whether  or  not  this  defendant  did  that. 


STATE  V.  MORROW. 


39 


If  ho  did,  he  is  guilty,  under  this  act;  if  ho  did  not,  ho  is 
not  guilty,  under  this  first  section  of  tlio  act."  If  he  did  what  'i 
Why,  certainly  if  he  did  what  was  charged  in  the  first  count  of 
the  indictment,  viz.,  cause  the  abortion  by  the  use  of  drugs. 
J'uttlie  judge  did  not  stop  there,  for  he  immediately  proceeded 
to  say :  "  If  he  did  not,  he  is  not  guilty."  Could  language 
make  it  plainer  to  the  jury  that,  unless  the  defendant  did  what 
was  charged  in  the  first  count,  he  could  not  be  found  guilty, 
no  matter  what  else  he  may  have  done?  So  that  this  analysis 
shows  that  the  jury  were  practically  instructed,  so  far  at  least 
as  tiie  first  count  was  concerned,  i)recisely  in  accordance  with 
such  a  request  as  would  have  been  the  proper  mode  of  raising 
the  ]i()int;  and  as  the  jury  found  a  general  verdict  of  guilty, 
which,  of  course,  embraced  the  first  count,  if  there  was  no 
error  (as  there  evidently  was  none)  in  the  instruction  as  to  the 
first  count,  it  would  make  no  practical  differenco  to  the  defend- 
ant even  if  there  was  error  in  the  instruction  as  to  the  second 
count,  which,  however,  we  are  not  prepared  to  admit. 

On  examination  of  that  portion  of  the  charge  which  relates 
to  the  second  count  in  the  indictment,  we  find  that  the  circuit 
judge,  after  sotting  out  the  second  section  of  the  act,  and  point- 
ing out  the  difference  between  that  and  the  first  section,  and 
declaring,  in  general  terms,  what  would  constitute  a  violation 
of  section  2,  proceeds  to  say  that  in  order  to  convict  the 
defendant,  under  tl'  it  sec n  ,  "  you  will  have  to  be  satisfied,  be- 
yond a  roa '-•'*'  "  loubt,  tliut  he  attempted  to  procure  an  abor- 
tion— intei  1.0  do  it — h  the  means  stated  here  in  the 
section  I  h.  read  to  you."  This  language,  isolated  from  the 
context,  would  see  n  to  afl'ord  some  support  for  tlie  posi- 
tion contended  for  i)y  the  appellant;  but  when  it  is  taken  in 
connection  with  the  entire  charge,  as  't  must  be,  under  the 
well-settied  rule,  it  is  apparent  that  it  «loes  not  justify  the  po- 
sition of  the  ap|)ellant,  for  in  the  very  next  paragraph  we  find 
that  the  jury,  after  being  told  what  were  the  issues  which 
they  were  to  try,  were  instructed  a^^  follows :  "  If  you  are 
satisfied  beyond  a  reasonable  doubt  that  either  or  both  of  these 
offenses  are  made  out,  you  will  have  to  convict  him  according 
to  the  degree  of  offense  described  in  the  act  atid  set  forth  in 
the  indictment.''^  (Italics  ours.)  Again,  the  jury  were  told : 
"  If  you  are  of  opinion,  and  are  satisfied  of  it,  beyond  a  reason- 
able doubt,  that  he  attempted  to  procure  an  abortion — intended 


!.  ;! 


\m^^: 


f^f'W 


40 


AMERICAN  CRIMINAL  REPORTS. 


to  do  it— by  the  means  set  out  here  in  tliis  act,  but  that  such 
means  did  not  accomplish  his  i)uri)ose,  and  that  the  abortion 
was  procured  by  other  means,  to  which  he  was  not  a  party, 
then  you  can  not  convict  him  on  the  first  count,  but  may  on 
the  second,  if  you  are  satisfied  beyond  a  reasonable  doubt." 
This,  followed  by  the  api)roval  and  adoption  of  the  solicitor's 
first  request  to  charge,  as  set  out  in  the  charge,  shows  that 
the  judge  did  not  intend  to  cliarge,  and  could  not  have  been 
understood  as  charging,  that  the  defendant  could  be  convictetJ 
without  the  means  of  procuring  the  abortion,  or  attempting  to 
procure  it,  being  such  as  were  set  out  in  the  indictment. 
Moreover,  there  was  not  the  slightest  evidence  tending  to  show 
that  the  defendant  either  used  or  employed,  or  advised  the  use 
or  employment,  of  any  instrument,  involving  force,  to  cause 
the  abortion;  and,  as  the  well-settled  rule  is  that  tlie  charge  of 
a  circuit  judge  must  be  understood  as  applying  to  the  case  as 
made  by  the  evidence,  we  can  not  consider  the  charge  here  as 
"-;    '  to  the  objection  made  by  the  tenth  exception. 

Again,  even  if  the  jury  had  believed  that  the  abortion  was 
in  fact  caused  by  the  use  of  instruments,  involving  the  appli- 
cation of  some  force,  rather  than  by  the  drugs  taken  as  al- 
leged in  the  indictment,  and  had  at  the  same  time  believed 
that  the  defendant  had  advised  the  use  of  such  drugs,  wit ii 
intent  to  bring  about  abortion,  the  jury  should  still  have  ren- 
dered a  verdict  of  guilty  under  the  second  count  of  the  indict- 
ment; for  it  is  quite  clear  that  the  second  section  of  the  act 
does  not  require  that,  in  order  to  constitute  the  offense  there 
denounced,  the  ineans  resorted  to  should  prove  eft'ective  to 
accomplish  the  purpose  intended.  The  otfense  consists  in  the 
use  of  the  means  mentioned  in  the  act,  with  the  intent  to 
cause  abortion,  and  it  is  immaterial  whether  such  means  effected 
the  purpose  intended  or  not.  We  are  of  opinion,  therefore, 
that  the  tenth  exception  can  not  be  sustai-ned. 

All  of  the  remaining  excejitions,  in  different  forms,  impute 
error  to  the  Circuit  Judge  in  overruling  the  plea  to  the  juris- 
diction; but  as  the  second  and  seventh  exceptions  seem  to  im- 
ply that  it  Avas  necessary,  in  order  to  constitute  the  offense 
charged,  that  some  force  or  duress  oi  some  kind  should  have 
been  used  to  induce  Colie  Fowler  to  use  the  means  resorted  to 
for  the  purpose  of  causing  the  abortion,  we  will  first  consider 
the  point  thus  made.    To  dispose  of  this  point,  it  is  quite  suf- 


STATE  V.  MORROW. 


41 


ficient  to  say  that  the  act  under  which  the  defen(hint  was  in- 
dicted plainly  does  not  contemplate  any  ingredient  of  that 
kind  in  the  offense  there  made  punishable  in  the  manner 
therein  prescribed.  There  is  not  a  word  in  either  section  of 
the  act  which  signifies  that  the  legislature  intended  that  the 
use  of  force  or  duress  in  any  form  was  an  element  in  the 
oifense.  On  the  contrary,  the  act  plainly  shows  that  no  such 
element  was  contemplated  as  constituting  any  part  of  the 
offense.  It  is  obvious  from  a  mere  reading  of  the  act,  and 
no  argument  can  make  it  plainer.  Indeed,  this  point  was  not 
mentioned  in  the  argument. 

The  remaining  exceptions  may  be  considered  together.  The 
question  which  these  exceptions  present  is  thus  stated  in  the 
argument  of  counsel  for  appellant :  "  Whether  the  Court  of 
General  Sessions  for  Richland  County,  S.  C,  had  jurisdiction  to 
try  the  defendant  for  his  alleged  violation  of  the  statutes  of 
this  state;  he  having  been,  at  the  time  of  the  commission  of 
the  only  overt  acts  charged  upon  him.  a  citizen  of,  and  actually 
in  another  state."  We  do  not  think  that  this  is  a  precisely 
accurate  statement  of  the  question  as  it  is  presented  by  the 
record  in  this  case,  for  there  was  evidence  tending  to  show 
that  the  defendant  had  had  sexual  intercourse  with  this  unfor- 
tunate girl,  likely  to  result  in  pregnancy;  that  when  she  dis- 
covered her  condition,  and  communicated  the  same  to  defend- 
ant, he  then  formed  the  intention  of  using  means  to  cause  an 
abortion;  that  the  intention  thus  conceived  Avas  attempted  to 
be  carried  out  by  applying  to  a  physician  to  know  whether 
the  drug  which  he  had  procured  to  effect  his  purpose  would  be 
sufficient  to  effect  his  object;  and  that  such  drug  was  taken  by 
the  girl  at  his  instance  and  by  his  advice.  True,  he  attempted 
to  disguise  what  the  jury,  under  the  evidence,  might  well 
have  regarded  as  his  real  purpose,  by  saying  to  the  physician 
that  he  had  a  little  lady  friend  who  had  missed  her  regular 
monthly  period,  and  desired  to  know  what  wo.uld  be  the  best 
thing  to  bring  it  on;  but  his  remark  to  the  doctor  that  the  girl 
was  awfully  scared  about  it,  and  would  not  have  her  condi- 
tion known  for  anything  in  the  world,  coming,  as  it  did,  from 
a  man  who  was  in  no  wise  related  to  the  girl,  and  only  tem- 
porarily resident  in  Columbia,  would  have  well  warranted 
the  jury  in  concluding  that  the  real  object  of  the  defendant 
was  to  obtain  something  that  would   cause   abortion,  and 


?i: 


U       ' 


,t 


p- 

ij«' 


Umi 


42 


AMERICAN  CRIMINAL  REPORTS. 


that  he  did  procure  a  certain  drug,  which  the  girl  used, 
by  h's  advice,  for  the  purpose  of  causing  the  abortion.     All 
this  oc(  urred  in  the  city  of  Columbia,  in  this  state;  and  there- 
fore it  is  not  correct  to  say,  as  is  said  in  the  statement  of  the 
question  above  quoted  from  the  argument  for  the  appelUint,  that 
he  Avas,  at  the  time  of   the  commission  "  of  the  only  overt 
acts  charged  upon  him,  a  citizen  of,  and  actually  in,  another 
state."     U  nder  this  view  of  the  case,  there  would  be  no  ground 
for  the  i)loa  to  the  jurisdiction,  and  this  would  be  conclusive 
of  this  appeal  so  far  as  the  question  of  jurisdiction  is  concerned. 
In  dei'eronce,  however,  to  the  zeal  and  ability  with  which  this 
appeal  has  been  prosecuted,  we  will  not  decline  to  consider 
the  question  as  it  is  formulated  in  the  argument  of  counsel. 
For  this  i)urpose  only,we  will,  for  the  present,  disregard  the  tes- 
timony aliove  alluded  to,  as  to  what  occurred  in  Columbia,  and 
consicier  the  case  as  if  the  only  "  overt  acts,"  as  they  are  some- 
what incorrectly  termed,  were  committed  in  the  city  of  Wash- 
ington, District  of  Columbia,  though  Ave  must  say  it  is  some- 
what dilftcult  to  separate  the  intention  (which   there   was 
evidence  tending  to  show  was  originally  formed  in  Columbia) 
from  the  acts  done  in  Washington  in  pursuance  of  such  in- 
tention.    Assuming,  however,  for  the  pur))oses  of  this  discus- 
sion only,  that  there  was  no  evidence  of  any  act  done,  in 
pursuance  of  an  intention  to  effect  an  abortion,  except  such 
acts  as  were  done  by  the  defendant  in  the  city  of  Washing- 
ton, then,  if  the  acts  there  done  were  intended  to  take  effect 
in  this  state,  and  did   there   actually  take   effect,  we  still 
think  the   court  in   this  state,  had   jurisdiction  of   the  of- 
fense charged.    The  evidence  leaves  no  doubt  that,  after  the 
defendant  left  this  state,  and  returned  to  Washington,  he  pro- 
cureil  from  a  druggist  there  certain  drugs  in  the  shape  of  pills, 
which  he  sent,  through  the  agency  of  the  United  States  mail, 
to  Colie  Fowler,  with  the  advice  to  use  them  for  the  purpose 
of  bringing  about  an  abortion;  that  she  received  the  pills  so 
sent,  and  used  them  according  to  the  advice  given  her  by  the 
defendant;  and  that  the  abortion  did  take  place,  which  resulted 
in  the  death  of  said  Colie  Fowler.    Under  this  state  of  facts, 
the  question  is  whether  the  courts  of  this  state  could  take 
jurisdiction.     There  can  be  no  doubt  that  it  is  the  duty  of  a  state 
to  protect,  as  far  as  practicable,  the  lives  and  persons  of  its 
citizens  and  others  temporarily  resident  therein  against  unlaw- 


I 


STATE  V.  MORROW. 


43 


fill  violenco  or  injury,  whether  the  person  committing  such 
violence  or  inflicting  such  injury  be  a  citizen  of  this  state  at 
the  time,  or  not.  If  such  person  go  beyond  the  jurisdiction 
after  committing  the  act,  or  be  and  remain  beyond  the  limits 
of  the  state  when  the  unlawful  act  is  committed,  it  may  be 
(litlicult,  and  oftentimes  impossible,  to  obtain  jurisdiction  of 
the  i)erson  of  the  party  committing  the  act,  which  would  be 
necessary  to  give  jurisdiction.  But  jurisdiction  of  the  person 
and  jurisdiction  of  the  subject-matter  are  two  entirely  distinct 
and  dilForent  things;  and  where,  as  in  this  case,  the  party 
charged  voluntarily  returns  to  this  state,  and  thereby  submits 
his  ])erson  to  the  jurisdiction  of  the  courts  of  this  state,  we 
see  no  reason  why  he  may  not  be  tried  and  punished  for  any 
violation  of  the  personal  rights  of  any  of  the  citizens  of  this 
state  entitled  to  the  protection  of  its  laws,  even  though  the 
act  by  which  such  violation  was  caused  was  originally  put 
in  motion  beyond  the  limits  of  the  state,  provided  the  effect 
thereby  intended  reached  the  person  for  whom  it  was  intended 
while  in  this  state.  If  the  defendant  procured  the  pills  in  Wash- 
ington, and  transmitted  them  by  mail  to  the  said  Colie  Fowler, 
with  the  advico  for  them  to  be  taken  for  the  purpose  of  bringing 
about  an  abortion,  and  she  received  and  took  them  in  this 
state,  in  contemplation  of  law  it  was  the  same  thing  as  if  the 
defendant,  in  person,  had  brought  the  pills  to  Columbia,  and 
there  delivered  them  to  Colie  Fowler;  for  while  it  is  quite 
true,  as  a  general  proposition,  that  the  principal  is  not  liable 
crinihuditef  for  the  unlawful  act  of  his  agent,  yet,  if  the  act 
done  by  the  agent  is  in  pursuance  of  the  authority  of  the  prin- 
cipal— done  by  his  authority — the  principal  is  liable.  This 
doctrine  has  been  expressly  recognized  and  acted  upon  by 
the  courts  of  this  state  in  the  case  of  State  v.  Anone,  2 
Nott  >S:  McC.  27,  where  the  owner  of  a  store  or  shop  was 
convicted  of  trading  with  a  slave,  though  the  act  of  trad- 
ing was  done  by  a  clerk,  in  his  employment,  in  the  absence 
of  the  employer;  the  evidence  being  sufficient  to  show  that 
such  trading  was  authorized  by  the  employer.  The  same  doc- 
trine was  also  fully  recognized  in  the  cases  of  State  v.  B<mj- 
man,  Id.  34,  and  State  v.  Williams,  3  Hill,  (S.  C.)  94,  though 
in  the  last  two  cases  the  defendants  escaped  conviction  solely 
on  the  ground  that  the  evidence  was  insufficient  to  show  that 
the  employer  had  authorized  or  directed  the  clerk  to  do  the 


\'}  1 


n'  1 


W:% 


}^'W 


m 


4^  AMERICAN  CRIMINAL  REPORTS. 

unlawful  act  charged.  Upon  the  same  principle,  it  seems  to 
us,  that  when  the  defendant  procured  the  pills  in  Washington, 
and  ])ut  them  in  the  mail  to  be  delivered  to  Colie  Fowler  in 
Columbia,  for  the  unlawful  purpose  charged,  it  was,  in  contem- 
plation of  law,  the  same  thing  as  if  he  had  there  delivered  the 
pills,  to  the  woman  for  whom  the}^  were  intended,  in  his  OAvn 
proper  person.  Instead  of  coming  in  person  to  Columbia  to 
deliver  the  pills,  he  simply  employed  the  agency  of  the  mail 
to  do  the  act  which  he  desired  to  have  done,  and  which  was 
done  by  his  express  authority  and  direction,  in  this  state.  So 
far  as  we  are  informed,  there  is  no  authority  in  this  state  as  to 
the  question  of  jurisdiction,  but  authorities  elsewhere,  which, 
though  not  binding  upon  us,  are  entitled  to  the  most  respect- 
ful consideration,  have  been  cited  to  show  error  in  overruling 
the  plea  to  the  jurisdiction.  It  seems  to  us  that  the  author- 
ities thus  cited  do  not  support  defendant's  contention;  and,  on 
the  other  hand,  we  find  authorities  elsewhere  supporting  the 
views  which  Ave  have  taken,  as  will  be  presently  shown. 

It  is  conceded  in  the  argument  for  appellant,  and  properly 
conceded,  as  the  authorities  abundantly  support  the  proposi- 
tion, tliat  "  if  one  sends  an  infernal  machine  from  one  state  to 
another,  or  shoots  from  one  to  another,  and  kills  a  human 
being,  or  sends  poison  from  one  state  to  another,  to  be  admin- 
istered to  a  person,  and  the  result  is  the  destruction  of  human 
life,  such  offender  may  be  tried  in  the  state  where  the  death 
happened ;"  but  the  attempt  is  made  by  appellant's  counsel  to 
show  that  this  proposition  of  law  applies  only  in  cases  where 
the  offense  charged  is  an  offense  at  common  law,  and  does  not 
apply  in  a  case  like  the  present,  which  is  a  mere  statutory 
offense.  It  would  unnecessarily  protract  this  opinion  to  con- 
sider whether  the  crime  of  abortion  was  an  offense  at  common 
law,  or  is  a  mere  creature  of  statute — a  question  which  does 
not  seem  to  be  very  clearly  settled  by  the  authorities ;  and  we 
will  assume  for  the  present  that  abortion  is  a  mere  statutory 
offense,  and  proceed  to  consider  whether  the  pro))osition  above 
quoted  from  apjiellant's  argument  is  limited  to  offenses  at  com- 
mon law,  and  does  not  apply  to  cases  like  the  present,  in  which, 
as  we  have  assumed,  the  offense  charged  is  of  mere  statutory 
origin.  Two  cases  have  been  cited  to  sustain  the  distinction 
sought  to  be  drawn  by  counsel  for  the  appellant :  ^State  v. 
Kiwjht,  Tayl.  (N.  C.)  44,  and  Pa>/>Zd  v.  Mernll,  2  Parker, 


i 


! 


.' 


J 


mg 


STATE  V.  MORROW. 


45 


Crim.  H.  590.  An  examination  of  Knight's  case  will  show  that 
the  fiicts  are  not  fully  reported,  and  the  headnote  shows  that 
tlie  only  point  there  decided  was  that  "the  legislature  of  this 
state  can  not  define  and  punish  crimes  committed  in  another 
state  " — a  proiX)sition  which  no  one  will  dispute.  From  read- 
ing the  case  it  would  appear  that  the  defendant  was  indicted 
under  a  North  Carolina  statute,  which  recites  in  its  preamble 
that  there  is  reason  to  apprehend  that  evil-disposed  persons, 
resident  in  the  neighboring  states,  make  a  practice  of  counter- 
feiting bills  of  credit  of  the  state,  and,  by  themselves  or  emissa- 
ries, utter  or  vend  the  same,  with  an  intention  to  defraud  the 
citizens  of  this  state,  and  proceeds  to  enact  that  all  such  per- 
sons shall  be  subject  to  the  same  modes  of  trial,  and,  upon  con- 
viction, to  the  same  punishment,  as  if  the  offense  had  been 
committed  within  the  limits  of  the  state ;  but  the  case  does  not 
show  that  the  defendant  was  charged  with  uttering  or  vend- 
ing such  counterfeit  bills,  either  in  person  or  by  his  emissa- 
ries, within  the  limits  of  the  State  of  North  Carolina.  On  the 
contrary,  it  may  be  inferred  that  the  charge  was  for  uttering 
or  vending  such  counterfeit  bills  outside  of  the  limits  of  the 
state,  for  the  manifest  object  of  the  statute  was  to  protect  the 
credit  of  the  state,  and  there  is  not  a  word  in  it  that  seems  to 
contemplate  that,  in  order  to  constitute  the  offense  denounced, 
the  circulation  of  such  bills  must  be  within  the  state.  "We  are 
unable,  therefore,  to  see  what  application  the  case  has  to  the 
case  now  under  consideration.  In  Merrill's  case  the  defendant 
was  indicted  for  a  violation  of  a  statute  declaring  that  any 
person  who  shall  sell  a  person  of  color,  who  shall  have  been 
forcibly  taken,  inveigled,  or  kidna])ed  from  the  State  of  New 
York,  shall,  upon  conviction,  be  punished  as  therein  prescribed. 
It  appeared  that  the  defendant  had  inveigled  a  person  of 
color  from  the  State  of  New  York  to  the  city  of  Washington, 
and  there  sold  him,  and  it  was  held  that  the  courts  of  New 
York  had  no  jurisdiction,  because  the  offense  charged  was  com- 
mitted beyond  the  limits  of  the  State  of  New  York.  It  will  be 
observed  that  the  gist  of  the  offense  charged  was  the  sale  of 
the  person  falling  within  the  class  described  in  the  statute,  and 
as  that  took  place  beyond  the  limits  of  the  State  of  New  York, 
it,  of  course,  followed  that  the  court  of  New  York  had  no 
jurisdiction.  The  inveigling  was  no  part  of  the  offense  charged 
in  the  count  upon  which  the  case  turned,  but  was  nothing 


I  I 


>    \l 


■'1r^ 


46 


AMERICAN  CRIMINAL  REPORTS. 


I        >■ 


more  than  one  of  the  elements  in  the  description  of  the  person 
whose  sale  was  forbidden  by  the  section  under  which  that 
count  of  the  indictment  was  framed ;  and  there  was  another 
section  in  the  same  statute  which  made  it  a  distinct  offense 
to  inveigle  a  person  of  color  from  the  state  with  intent  to  sell 
him,  under  which  the  court  said  the  courts  of  New  York 
would  have  jurisdiction.    We  do  not  see,  therefore,  how  appel- 
lant can  derive  any  support  from  Merrill's  case.     It  seems  to 
us  that  all  of  the  cases  cited  by  appellant's  counsel  to  sustain 
the  point  now  under  consideration,  decide  nothing  more  than 
the  broad  proposition,  which  no  one  will  dispute,  that  the 
courts  of  one  state  can  not  take  jurisdiction  of  offenses  com- 
mitted in  another  state ;  but  the  question  here  is  whether  the 
offense  was,  in  the  eye  of  the  law,  committed  within  the  limits 
of  this  state.     It  seems  to  us  that  the  authorities  which  we 
will  now  cite,  sustain  the  view  which  we  have  taken,  in  a  ]ire- 
vious  part  of  this  opinion,  that,  in  the  eye  of  the  law,  the 
offense  charged  was  really  committed  here,  although  the  de- 
fendant, Morrow,  was  in  the  citv  of  Washington  when,  throuirh 
an  innocent  agent,  the  United  States  mail,  he  transmitted  the 
drugs  to  Colie  Fowler,  Avhile  in  this   state,  with  intent  to 
cause  the  abortion  charged,  and  which,  by  his  advice,  were  used 
by  her  here.     In  1  Bish.  Cnm.Law,  §  110,  that  eminent  author 
says :  "  The  general  proposition,  therefore,  is  that  no  man  is 
to  suffer  criminally  for  what  he  does  out  of  the  territorial 
limits  of  the  country  ;  yet  one  who  is  personally  out  of  the 
country  may  put  in  motion  a  force  which  takes  effect  in  it, 
and  in  such  a  case  he  is  answerable  where  the  evil  is  done, 
though  his  presence  is  elsewhere.    Thus,  if  a  man,  standing 
beyond  the  outer  line  of  our  territory,  by  discharging  a  ball 
over  the  line,  kills  another  within  it ;  or,  himself  being  abroad, 
circulates  through  an  agent,  libels  here;  or,  in  like  manner 
obtains  goods  by  false  pretenses ;  or  does  any  other  crime  in 
our  own  locality  against  our  law— he  is  punishable,  tiiough 
absent,  the  same  as  if  he  were  present."    Counsel  for  appel- 
lant questions  this  proposition,  or  rather   the  illustrations 
given,  so  far  as  it  implies  by  the  language  "  or  does  any  other 
crime  in  our  own  locality  against  our  laws,"  that  the  proposi- 
tion is  applicable  to  statutory  as  well  as  common  law  offenses, 
and  has  undertaken  to  show  that  all  the  authorities  cited  by 
the  author  to  sustain  the  text  are  either  civil  cases,  or  cases 


STATE  V.  MORROW. 


47 


charging  common  law  offenses,  except  the  case  of  Bui'lhtm- 
dead  0.  Parsons,  3  Conn.  1,  which  was  a  qui  tarn  action.  Con- 
ceding this  to  be  true,  we  do  not  see  how  tliis  can  help  the 
ajipellant,  unless  some  authority  can  be  found  which  recognizes 
the  distinction  sought  to  be  drawn  between  statutory  and  com- 
mon law  offenses  in  this  respect ;  and  we  do  not  find  any  such 
authority,  nor  are  we  able  to  perceive  any  sufficient  reason  for 
any  such  distinction.  The  mere  fact  thut  the  cases  cited  by 
^Ir.  Bishop  to  sustain  the  legal  principles  which  he  lays  down 
happen  to 'be  cases  of  the  character  claimed  by  a])]iellant  can 
not  affect  the  legal  principle,  which  is,  substantially  this  :  that 
a  person  may  commit  an  offense  within  thi?  state,  by  ])utting 
in  motion  a  force  which  takes  effect  here,  or  Oy  acting  through 
innocent  agents  here,  althou^rh  the  part}'  charged  may  never 
have  been  personally  present  in  this  state.  To  the  same  effect, 
see  1  Whart.  Crim.  Law,  §§  278,  604.  These  distinguished 
text  writers  are  sustained  by  numerous  cases,  some  of  which 
we  will  cite.  In  People  v.  Adams,  3  Denio,  190,  affirmed  by 
the  Court  of  Appeals  in  1  N.  Y.  173,  the  indictment  substan- 
tially charged  the  defendant  with  obtaining  money  under  false 
pretenses,  in  violation  of  a  statute  of  the  State  of  New  York. 
The  allegation,  in  substance,  was  that  the  defendant,  by 
exhibiting  a  receipt,  purporting  to  be  signed  b}'  a  forwarding 
agent  in  Ohio,  for  certain  produce  to  be  forwarded  to  certain 
commission  merchants  in  the  city  of  New  York,  to  such  mer- 
chants, induced  them  to  accept  drafts  drawn  on  tliera  by 
defendant  against  such  produce,  which  the  commission  mer- 
chants afterward  had  to  pay  out  of  their  own  funds,  the 
receipt  exhibited  being  false  and  fraudulent.  The  defendant 
filed  a  plea  to  the  jurisdiction,  alleging  that  he  Avas  a  citizen 
of  Ohio  and  resident  in  that  state  at  the  time  of  the  transac- 
tion referred  to,  and  never  had  been  in  the  State  of  New  York. 
To  this  plea  a  demurrer  was  interposed,  and  was  sustained,  the 
court  holding  the  offense  of  obtaining  money  by  false  pre- 
tenses is  committed  where  the  false  pretenses  are  successfully 
used,  and  where  the  money  is  obtained,  and  that  though  the 
defendant  was  absent  from  the  State  of  New  York  when  the 
money  was  obtained  by  him,  through  innocent  agents  in  that 
state,  employed  by  defendant,  the  offense  charged  was,  in  the 
eye  of  the  law,  committed  by  defendant  in  the  State  of  New 
York,  through  his  innocent  agents,  although  he  was  absent 


'  A 


43 


AMERICAN  CRIMINAL  REPORTS. 


from  the  state  at  the  time,  and  hence  the  plea  to  the  jurisdic- 
tion could  not  be  sustained.  This  case  was  elaborately  and 
ably  argued  by  very  distinguished  counsel,  and  their  arguments, 
which  are  fully  reported  in  3  Denio,  present  a  full  review  of 
the  authorities.  The  same  doctrine  is  recognized  in  Reg.  v. 
Garrdt,  22  Eng.  Law  &  E.\.  Gil,  where  Lord  Cami)bell,  then 
Chief  Justice,  said :  "  A  jierson  abroad  may,  by  the  employment 
as  well  of  a  conscious  as  of  an  unconscious  agent,  render  him- 
self amenable  to  the  law  of  England  when  he  comes  within 
the  jurisdiction  of  our  courts."  In  St<ite  v.  Chajrin,  17  Ark., 
at  pages  505,  500,  it  is  said :  "  It  is  not  necessary,  in  all  cases, 
that  a  man  should  be  actually  present  in  this  state  to  make 
him  amenable  to  our  laws  for  a  crime  committed  here.  If 
the  crime  is  the  immediate  result  of  his  act,  he  may  be  made 
to  answer  for  it  in  our  courts,  though  actually  absent  from  the 
state  at  the  time  he  does  the  act,  because  ho  is  constructivel}' 
present,  or  present  in  contemplation  of  law."  And  again : 
"  If  a  person  absent  from  this  state  commits  a  crime  here, 
through  or  by  means  of  an  innocent  instrument  or  agent,  it 
seems  that  the  law  would  regard  him  as  jiersonally  present, 
and  hold  him  responsible  for  the  offense."  This  case,  as  well 
as  the  case  of  People  v.  Adams,  supra,  recognizes  the  distinc- 
tion between  a  case  where  a  person  abroad  does  an  act  here 
through  a  guilty  agent  and  where  the  same  act  is  done  through 
an  innocent  agent,  or  some  inanimate  agency;  for  in  the 
former  case,  where  the  act  is  a  felony,  the  guilty  agent  must 
be  regarded  as  the  principal  felon,  and  the  person  abroad  who 
employs  him  should  be  regarded  as  an  accessory  before  the 
fact,  and  only  punishable  where  he  actually  is  at  the  time 
he  incites  his  guilty  agent  to  do  the  act  here.  Hence  the  cases 
cited  by  appellant  to  sustain  such  a  distinction  are  not  appli- 
cable to  this  case,  as  there  is  no  pretense  that  the  agency  em- 
ployed by  the  defendant  Morrow,  to  transmit  the  drugs  from 
Washington  to  Colie  Fowler,  in  Columbia,  was  a  guilty  agent. 
To  sustain  the  general  doctrine  which  we  have  announced,  that 
a  person  abroad  may  commit  a  crime  here  through  the  agency 
of  innocent  persons  here,  or  inanimate  instruments,  see  Hex  v. 
Brissac,  2  East  (New  Ed.),  373;  myes  v.  State,  41  N.  J.  Lawj 
418;  Peoj)le  v.  Rathbun,  21  Wend.,  at  page  534.  The  judg' 
raent  of  this  Court  is  that  the  judgment  of  the  Circuit  Court 
be  affirmed. 


")  -k   ii 


STATE  V.  LEWIS. 
McGowAN  and  Popk,  JJ.,  concur. 


49 


"SoTE.— Accomplice. — The  Supreme  Court  of  Ohio  in  State  v.  McCoy,  52 
Oliio  St.,  in  construing  tlie  statute  of  thut  state,  wliich  is  similar  to  that  of 
many  other  states,  says:  Whenever  a  woman  voluntarily  participates 
with  another  person,  who  administers  medicine  to  or  uses  an  instrument 
upon  her,  for  the  purpose  of  producing  a  criminal  miscarriage  \1\v3j\  herself, 
she  falls  within  the  express  provision  of  the  last  quoted  statute,  and  is 
tlicreby  subject  to  indictment  and  punishment  as  an  aider,  abetter,  or  pro- 
curer of  the  principal  oifender;  and  her  evidence,  when  she  testifies  in  the 
case,  should  Ite  regarded  aa  that  of  an  accomplice.  One  who  accompanies 
it  woman  to  the  office  of  a  physician,  who  commits  an  abortion  upon  the 
latter,  but  does  not  aid  or  advise  the  physician  in  his  crime  and  is  not 
present  when  it  is  consummated,  is  not  an  accomplice  in  that  crime. 
People  V.  McOonegal,  136  N.  Y.  62. 

Where  the  attempt  fails,  the  person  taking  the  medicine  is  not  an 
accomplice,  though  she  consented  to  what  was  being  done.  Williiighom  v. 
State,  33  Tex.  Cr.  R.  —  . 

Evidence. — On  a  trial  for  abortion,  proof  of  thedeath  of  the  woman  from 
miscarriage  is  admissible  as  port  of  the  history  of  the  case.  People  v.  Van 
Zile,  73  Hun,  534. 

Dying  declarations. — The  dying  declarations  of  a  woman  upon  whom  an 
nlxtrtion  has  been  committed  are  competent,  though  the  husband  was  an 
accomplice.     State  v.  Pearce,  56  Minn.  226. 

Indictment. — An  indictment  under  Pen.  Code,,  Art.  538,  for  an  attempt  to 
commit  an  alrartion  by  the  use  of  means  calculated  to  produce  the  same, 
need  not  state  the  means  used.  Walson  v.  State,  9  Tex.  App.  237,  fol- 
lowed; Cane  v.  State,  32  Tex.  Cr.  R.  — 

See,  generally,  Ooina  v.  State,  8  Am.  Cr.  B.  10,  note* 


State  v.  Lewis. 

(60  Ohio  St.  179.) 
AnREST  Without  WARRA^fT:  Offense  in  presence  of  officer. 

Where  a  breach  of  the  peace  is  committed  in  the  presence  of  a  marshal 
of  an  incorporated  village  or  city,  he  may,  without  warrant,  arrest  the 
persons  who  participate  therein.  If,  however,  the  officer  was  absent 
when  such  offense  was  committed,  and  did  not  appear  there  until  after 
the  affray  had  ended,  public  order  restored,  and  the  guilty  parties  had 
departed  from  the  vicinity,  and  all  the  information  the  officer  had  of 
the  affray,  and  of  the  parties  to  it,  was  the  statements  of  bystanders 
who  witnessed  it,  he  has  no  authority  inlaw,  to  pursue  and  arrest  the 
persons  charged  with  the  offense,  without  first  obtaining  a  legal  war- 
rant therefor. 

Exceptions  to  Court  of  Common  Pleas,  Highland  County. 
4 


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50 


AMERICAN  CRDIINAL  REPORTS. 


'l! 


One  Lewis  was  indicted  for  murder  in  the  second  dci^ree. 
To  cei-tain  rulings  of  the  Court  the  State  excepts.  Exceptions 
sustained. 

Genrqe  L.  Garrett,  prosecuting  attorney,  T.  TT.  IIorjuctt^rxnA 
R.  M.  Dttteij,  for  the  State. 
M.  11.  Pattermn  and  E.  A.  Hnggins,  for  defendant. 

BRADTirRT,  C.  J.  The  defendant  was  indicted  for  murder  in 
the  second  degree,  for  causing  the  death  of  one  Edward  Elliott, 
in  the  course  of  an  attempt  to  arrest  the  latter  for  the  com 
mission  of  a  misdemeanor.  Tlie  defendant  Avas  marslial  of  the- 
village  of  Hillsborough,  in  Highland  county,  and,  being  put  upon 
trial  for  the  homicide,  it  became  material  to  inquire  into  the 
authority  of  such  olficers  to  make  arrests  without  a  written 
warrant  therefor;  and  after  the  evidence  had  been  given  the 
prosecuting  attorney  requested  the  court  to  give  to  the  jury 
certain  legal  propositions,  the  object  of  which  was  to  define 
the  authority  vested  by  law  in  the  marshal  of  an  incorporated 
village  to  arrest  without  written  warrant  alleged  offenders 
ajjainst  the  laws  of  the  state  or  the  ordinances  of  the  village. 
The  third  proposition  requested  reads  as  follows:  "If  you 
find  from  the  testimony  that  the  breach  of  the  peace  did  not 
occur  in  the  presence  of  the  defendant,  and  was  over,  and  the 
deceased  had  ceased  from  the  commission  of  a  breach  of  the 
peace,  and  that  the  affray  was  ended,  and  the  deceased  was  not 
attempting  a  continuation  of  the  brctach  of  the  peace,  but  was 
about  his  peaceful  and  lawful  avocations,  when  the  defendant 
arrived  at  the  place  where  the  affray  had  taken  place,  and  the 
defendant  did  not  attempt  to  make  the  arrest  until  he  had 
gained  such  knowledge  as  he  possessed  of  the  affair  from  in- 
quiries made  of  third  persons,  such  arrest  or  attempted  arrest 
was  unlawful,  and  the  deceased  had  a  right  to  resist  such  ar- 
rest or  attempted  arrest;  and  the  defendant,  under  these  circum- 
stances, was  himself  in  the  performance  of  that  for  which  he 
must  be  held  responsible."  This  proposition  the  court  refused 
to  give,  and,  instead,  gave  substantially  its  converse,  in  the  fol- 
lowing terms :  "  It  is  not  disputed  that  a  short  time  before 
Elliott  was  killed,  he  had  a  quarrel  in  Doorley's  saloon  with 
one  William  Eakin,  and  knocked  him  down.  That  was  a  vio- 
lation of  one  of  the  ordinances  of  Hillsborough.    The  fact  that 


ing 


sisted 


STATE  V.  LEWia 


51 


Kiik in  called  him  a  liar  was  no  justification  inlaw,  for knock- 
injr  him  down.  If  you  find  from  tho  evidence  that  within  a 
short  time  after  this  occurred — as  soon  as  possible  after  it  oc- 
cuirod — Lewis  was  sent  for  to  arrest  Elliott;  that  Lewis,  as 
marshal  of  the  town,  went  at  once  in  pursuit  of  Elliott;  that 
EUiott  on  seein*^  Lewis  approach,  started  to  leave  the  town  in 
a  hurried  manner;  that  Lewis  pursued  him — then  I  charge  you 
that  Lewis,  upon  overtaking  Elliott,  had  the  lawful  right  to 
arrest  him,  notwithstanding  he  had  no  warrant  for  that  pur- 
l)oso."  To  the  charges  as  given,  and  to  the  refusal  to  cliarge  as 
rc(iuosted,  the  prosecuting  attorney  excepted,  and,  embodying 
them  in  a  bill  of  exceptions,  has  brought  them  to  this  court 
for  review,  by  virtue  of  sections  7305,  TJJOG,  Rev.  St. 

That  the  defendant  was  marshal  of  the  village  of  Hillsbor- 
ough, did  not  witness  the  affray,  nor  procure  from  a  magistrate 
a  Avarrant  for  the  arrest  of  the  deceased,  are  conceded  facts. 
In  addition  to  this,  the  testimony  given  in  behalf  of  the  state 
tended  to  jirove  that  the  deceased  had  participated  in  an  affray 
in  a  saloon  within  the  village  of  Hillsborough,  on  the  day  of 
the  homicide;  that  the  defendant  was  absent,  and  did  not  hear 
or  see  any  part  of  the  affray;  that  a  few  minutes  thereafter 
he  received  information  that  a  breach  of  the  peace  had  been 
committed,  and  at  once  went  to  the  saloon  where  it  had  oc- 
curred; that  when  he  reached  the  saloon  the  parties  to  it  had 
gone,  and  good  order  had  been  restored;  that  upon  inquiry  the 
defendant  was  told  that  an  affray  had  been  committed,  in  which 
the  deceased  had  participated,  and,  ascertaining  the  direction 
taken  by  the  deceased,  the  defendant,  without  obtaining  a  war- 
rant, immediately  pursued,  soon  after  overtook  and  proceeded 
to  arrest  him  for  that  offense;  that  the  deceased,  though  hav- 
ing knowledge  of  the  official  character  of  the  defendant,  re- 
sisted  the  arrest,  and  in  the  resulting  struggle  was  shot  and 
killed  by  the  defendant. 

The  authority  of  peace  officers  to  arrest  without  a  warrant 
from  a  magistrate  is  a  subject  that  has  received  the  attention 
of  courts  and  text  writers  from  an  early  period  in  the  history 
and  development  of  the  common  law  in  both  England  and 
America.  Some  of  the  earlier  English  authorities,  while  the 
l)rerogatives  of  the  government  were  more  highly  considered 
than  at  a  later  day,  maintained  the  power.  2  Hale,  P.  C.  90. 
But  even  then  the  doctrine  met  with  a  resistance  which  finally 


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52 


AMERICAN  CRIMINAL  REPORTS. 


overturn;)  I  it.  1  East  P.  C.  305;  L\'<j.  v.  Toolet/,  2  Ld.  Rayin. 
1301,  whor.)  Lordlloltjn  delivering  the  opinion  of  the  major- 
ity of  the  court,  is  reported  as  saying:  "  The  prisoners  in  this 
case  had  surticient  provocation;  for  if  one  be  imi>risoned  upon  an 
unlawful  authority,  it  is  a  sufficient  provocation  to  all  people 
out  of  compassion;  much  more  where  it  is  done  under  a  color 
of  justice,  and  where  the  liberty  of  the  subject  is  invaded,  it  is 
a  jirovocation  to  all  the  subjects  of  England.  He  said  that  a 
constable  can  not  arrest  but  when  he  sees  an  actual  breach  of 
the  i)eace,  and,  if  the  affray  be  over,  he  can  not  arrest."  See, 
also,  2  Hawk.  V.  C,  c.  13,  §  8.  The  later  English  authorities 
seem  to  settle  the  law  there  in  accordance  with  the  views  of 
Lord  Holt.  CovjH'i/  v.  Ihnlcy,  2  Esp.  540;  Jiaytwsv.  Bnwster, 
2  Adol.  »fe  E.  (\.  S.)  375;  P"{/.  v.  JfaU,  9  Car.  &  P.  474; 
Thnothy  v.  Sl/Djmm,  1  Comp.  M.  &  R.  757;  Gnoit  v.  Moser,  5 
Man.  &  (t.  123;  1  Uuss.,  Crimes  (8th  Ed.),  410,  805.  In  Cook  v. 
Nithefcote,  0  Car.  &  P.  741,  Alderson,  B.,  in  that  case,  in  sum- 
ming up,  says :  "  If,  however,  there  had  been  an  affray,  and 
that  affray  were  over,  then  the  constable  had  not,  and  ought 
not  to  have,  the  ])ower  of  apprehending  the  person  engaged 
in  it;  for  the  power  is  given  him  by  law  to  prevent  a  breach 
of  the  peace,  and  where  a  breach  of  the  peace  had  been  com 
mitted,  and  was  over,  the  constable  must  proceed  in  the  same 
way  as  any  other  person,  namely,  by  obtaining  a  warrant  from 
a  magistrate."  Id.  744.  The  American  authorities  establish 
the  same  rule.  Roberts  v.  State,  14  Mo.  138;  People  v.  Haley, 
48  Mich.  495;  Phillips  v.  Trull,  11  Johns,  486;  Pow  v.  Beck- 
ner,  3  Ind.  475;  1  Bish.  Crim.  Proc.  183,184;  Quinn  v.  Ileisel, 
40  Mich.  570;  In  re  Way,  41  Mich.  299;  Com.  v.  Carey,  12  Cush. 
246. 

This  court  has  held  that  a  city  council  may■la;^vfully  authorize 
police  officers  to  arrest  upon  view  any  person  found  in  the  act 
of  violating  the  ordinances  of  the  city  made  for  the  preserva- 
tion of  good  order  and  pul>lic  convenience  ( White  v.  Kent,  11 
Ohio  Sti  550);  also,  that  the  officer,  in  making  arrest  upon 
view,  is  not  bound  to  disclose  his  official  character  ( Wolf  v. 
State,  19  Ohio  St.  248);  and  that  it  is  lawful  to  arrest,  without 
warrant,  one  who  is  unlawfully  carrying  a  concealed  weapon, 
though  the  officer  had  no  previous  knowledge  of  the  fact,  if 
he  acted  hona  fide  upon  knowledge  which  induced  an  honest 
belief  that  the  person  was  violating  the  law  in  this  respect. 


STATE  t'.  LEWIS. 


fid 


Jiitlhird  V.  State,  43  Oliio  St.  340.  But  the  facts  in  those 
ciises  disclose  that  tlie  person  arrested  was  talcen  wliile  in  the 
act  of  committing  the  otfense  for  which  he  was  apprehended, 
while  in  the  case  under  consideration  the  evidence  tended  to 
sliow  that  the  defenchmt  acted  upon  information,  only,  and 
that  the  affray  was  over,  and  public  order  restored,  before  he 
attempted  to  pursue  or  arrest  tlie  supposed  offender.  The 
section  of  tlie  Revised  Statutes  that  defines  the  iiow^^rs  of  mar- 
shals within  tlie  municipalities  of  the  state  reads  as  follows : 
"Section  1S49,  Rev.  St.:  He  shall  suppress  all  riots, disturb- 
ances, and  breaches  of  the  peace,  and  to  that  end  may  call 
upon  the  citizens  to  aid  him;  he  shall  arrest  all  disorderly  per- 
sons in  the  corporation,  an('  pursue  and  arrest  any  person  flee- 
ing from  justice  in  any  part  of  the  state;  he  shall  arrest  any 
l)jrson  in  the  act  of  committing  any  off  en  se  against  the  laws 
of  the  state  or  ordinances  of  the  corporation,  and  forthwith 
liring  such  person  before  the  mayor,  or  other  competent  au- 
thority, for  examination  or  trial;  and  he  shall  receive  and 
execute  any  proper  authority  for  the  arrest  and  detention  of 
criminals  fleeing  or  escaping  from  other  places  or  states." 
This  section  imposes  on  the  marshal  of  a  municipality  im- 
portant public  duties,  and  clothes  him  with  extensive  powers 
in  respect  to  their  discharge.  He  is,  by  the  terms  of  this 
section,  among  other  duties  which  it  enjoins,  required  to  "  pur- 
sue and  arrest  any  person  fleeing  from  justice  in  any  part  of 
the  state;"  but  whether  with  or  without  warrant,  the  section 
is,  in  terms,  silent.  He  is  thus  clothed  with  authority  through- 
out the  whole  state,  which,  but  for  the  statute  under  consider- 
ation, would  be  limited  to  his  municipality.  What  is  found 
in  the  other  language  of  this  statute  that  indicates  a  legisla- 
tive purpose  to  dispense  with  a  warrant  in  cases  where,  ac- 
cording to  the  principles  of  the  common  law,  or  by  other 
statutory  provisions,  one  would  otherwise  be  necessary  ?  We 
can  discover  nothing.  Statutes  of  this  class,  though  en- 
acted in  the  interests  of  public  order,  yet  derogate  from  the 
liberty  of  the  citizen,  and  if  not  strictly  construed,  which  the 
weight  of  authority  seems  to  hold  they  should  be,  3'et  are  not 
to  be  extended  by  a  loose  or  liberal  construction.  Bish.  Crim. 
Proc.  184;  Rmmey  v.  Foy,  10  Ind.  493;  State  v.  Dale,  3  Wis. 
795.  The  authority  should  be  limited  to  the  necessity  for  its 
exercise.    Where  an  affray  is  in  progress,  or  an  offense  in  the 


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54  AMERICAN  CRIMINAL  REPORTS. 

course  of  commission,  in  the  prosonco  of  an  olficer,  his  duty  is 
to  prevent  its  continuance  or  c(jmpletion.  To  accomplish  this 
elfectually,  the  ])o\ver  to  at  once  api)rehen(l  the  offender  is 
necessarv.  Under  such  circumstances,  to  stay  his  hand  until 
a  warrant  could  be  oi)tained  would  paralyze  his  power  to  pre- 
vent ci'ime  and  maintain  the  ])ul)lic  peace.  So,  perhaps,  the 
leg-ality  of  an  arrest  without  warrant  might  be  maintained 
where  the  affray  or  other  misdemeanor  had  already  been  com- 
pleted when  the  otticijr  api.eared,  if  the  offender  was  i)resent, 
and  puljlic  order  iiad  not  yet  been  completely  restored.  Where, 
however,  the  offense  is  an  accomi)lished  fact,  its  prevention  is 
no  longer  possible,  and,  if  public  order  has  been  fully  restored 
before  the  ollicer  appears,  the  power  to  arrest  without  warrant 
for  a  mere  breach  of  the  peace  or  other  minor  offense  is  no 
longer  necessary;  for  the  end — to  maintain  the  public  i)eace — 
for  which  such  authority  is  given,  is  no  longei"  attainable. 
Even  where  such  an  offense  has  been  committed  in  the  presence 
of  an  oHicer,  his  power  to  arrest  the  offender  without  warrant 
should  be  ])romptly  exercised,  or  it  will  be  lost.  1  Amer.  cV: 
Eng.  Enc.  haw,  TS-l;  Qnccn,  v.  Mnivihn,  1  L.  K,  C.  Cas.  131; 
(Jl'rffi)i'd  i\  lii'ibiidm,  2  Cam[).  358.  In  one  case,  it  was  held 
that  the  ollicer  must  i)roceed  at  once  in  the  matter,  aii<l  follow 
it  up  nntil  the  arrest  is  accomplished,  and  a  delay  of  five 
hours  was  fatal  to  the  authority.  Wahl  v.  Walton,  30  Minn. 
5110.  In  /Ay.  V.  Wti/kc/',  Dears.  C.  Cas.  358,  two  hours  had 
elapsed  i)efoi'e  the  ai'rest  was  attempted;  and  the  co  irt  for 
hearing  reserved  crown  cases,  speaking  by  Pollock,  C.  l>.,said  : 
'•  We  are  of  o})inion  that  the  apprehensi<jn  was  not  lawful. 
The  assault  for  which  the  prisoner  might  have  been  ai)[)re- 
hended  was  committed  at  another  time,  and  at  another  place. 
There  was  no  continued  pursuit  of  the  i)risoner."  Id.  350. 
In  3fei/i;r  v.  Clarh,  il  X.  Y.  Supjr.  Gt.  U.  107,  an  interval  of  a 
few  minutes,  where  the  officer  in  the  mean  time  had  gone  away, 
and  made  the  arrest  on  his  return,  rendcsred  it  illeiral. 

The  authorities  establish  the  rule  that  the  powers  of  peace 
officers  to  arrest  without  warrant  for  a  mere  misdemeanor 
should  hi)  made  as  delinite  and  certain  as  may  bo  consistent 
with  an  elUcient  discharge  of  his  duty  to  maintain  ])ublic 
order,  anil  extendeil  no  furtiier  than  may  bo  necessary  to 
that  end,  Wht;re  he  acts  upon  view,  he  is  /ecpiired  to  act 
promi)tly.     This  may  introduce  an  element  of  iudeliniteness, 


k   '^Sfti 


STATE  V.  LEWIS. 


oo 


for  wl'.other  he  is  prompt  or  not  must  depend  to  some  extent 
upon  the  circumstances  in  whicli  he  is  phiced.  Tliis,  however, 
is  unavoidable,  unless  it  should  be  held  thnt  he  must  act  at 
once,  or  lose  the  power  to  arrest;  and  this  deforce  of  prompt- 
ness, it  seems,  is  not  required.  Tai/lor  v.  Strong,  3  Wend.  384; 
S/it/nfc;/  V.  Wells,  71  111.  78;  I  Amer.  &  En<^.  Enc.  Law,  737. 
However,  to  extend  bis  power  of  arrest  in  the  class  of  offenses 
under  consideration  so  as  to  authorize  him  to  act  solely  upon 
information  obtained  from  third  persons,  not  only  as  to  whether 
an  oifense  had  been  committed,  but  also  as  to  the  ))erson  who 
liad  committed  it,  is  not  only  unnecessary  to  enable  him  to 
])roserve  public  order,  but  would  render  still  more  indefinite 
and  uncertain  the  extent  of  his  authority.  How  soon  after 
tlie  otfcnse  had  been  committed  should  the  information  be 
coniinitnk'ated,  to  authorize  the  oihcer  to  act  without  the  sanc- 
tion of  a  warrant,  and  how  soon  thereafter  must  he  ])rocied 
to  make  tlie  arrests  A  satisfactory  answer  to  these  (juestions 
is  not  readilv  found.     If  such  imwer  was  absolutely  necessary 

»'  I-  «•  v 

to  preserve  the  ))ublic  peace,  an  objection  to  it,  founded  upon 
its  extent  and  uncertainty,  should  yield  to  that  necessity;  but 
it  may  well  be  doubted  whether  this  power  of  a])prehonsion 
for  a  mere  misdemeanor,  upon  information  only,  and  without 
wan-ant,  in  view  of  the  temper  and  notions  of  our  ])eople  in 
n'jj:ai'd  to  their  personal  rights,  and  the  oi)inion,  so  often,  how- 
ever unjustly,  entertained  by  the  public,  respectin*,'  the  discre- 
tion of  a  large  class  of  peace  otKcers,  would  not  tend  to  dis- 
turl».  rather  tlian  promote,  the  ])ublic  ])eace.  AVe  think,  there- 
fore, the  statute  under  consideration,  even  if  it  stood  alone, 
should  not  be  construed  to  authorize  a  nuirshal  of  a  city  or 
viUat'c  to  airest  without  warrant  for  a  mere  misdemeanor  not 
committed  in  his  presence. 

The  section  (1841),  Kev.  St.)  under  consideration,  however, 
<loes  not  stand  alone.  The  general  assembly,  by  section  712!*, 
Rev.  St.  has  spoken  upon  tliis  su!)ject.  That  section  (712!)) 
])r(n-ides  that  *'a  sheriif,  de[mty  sheriir,  constable,  marshal, 
deputy  marshal,  watchman,  or  police  oUicer  shall  arrest  and 
detain  any  ])erson  found  violating  any  law  of  this  state,  or  any 
legal  ordinance  of  a  city  or  vi'Tige,  until  a  legal  warrant  can 
l)e  obtained.  This  section,  and  section  1849,  liev.  St.,  which 
has  been  under  consideration,  are  iti  pari  materia  and  should 
be  construed  together,  as  well  as  in  reference  to  the  established 


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5(j  AMERICAN  CRIMINAL  REPORTS. 

rules  of  t:ie  common  law.  The  general  assembly,  by  section 
7129,  Rev.  St.,  must  be  deemed  to  have  prescribed  the  rule  re- 
lating to  the  subject  it  was  then  considering,  namely,  the  circum- 
stances under  which  an  arrest  may  be  made  without  warrant, 
while  by  section  1849,  Kev.  St.,  it  prescribed  the  general  duties 
and  powers  of  marshals  of  our  cities  and  villages;  and,  Jis 
there  is  no  inconsistency  between  the  two,  neither  statute 
should  be  regarded  as  conflicting  with  the  other,  but,  if  there 
were  such  conflict,  each  should  be  deeraetl  paramount  in  respect 
to  the  particular  subject  to  which  it  specially  relates.  Section 
7129,  Eev.  St.,  provides  for  the  arrest  of  |>ersons  "found  vio- 
latino- "  a  law  or  ordinance.  Found  by  whom  ?  The  statute 
does  not  expressly  declare,  but,  when  the  rules  of  the  common 
law  ui)on  this  subject  are  considered,  it  is  clear  that  the  legis- 
lature meant,  found  by  the  officer  who  attempts  to  make  the 
arrest.    Exceptions  sustained. 


St 


Note.— CiVtV  liabiJ  ty  of  officer.— Vfhen  a  lawful  warrant  for  an  arrest 
has  been  issued,  atd  placed  in  the  hands  of  a  marshal  or  sheriff, 
tlie  fact  that  his  deputy  makes  the  arrest  witliout  having  the  war- 
rant in  his  possession,  does  not  render  the  principal  civilly  liable  to 
the  person  arrested.  Cabell,  Marsliall  d  al.  v.  AruokL  80  Tex.  (S. 
C.)  103,  in  which  case  Chief  Justice  Stayton,  in  delivering;  the  Opinion, 
said :  "  We  have  the  question  whether,  when  a  lawful  warrant  has 
been  issued,  and  placed  in  the  hands  of  a  marshal  or  sheriff,  hisdeputy  may 
make  an  arrest  without  having  the  warrant  in  his  possession  at  tiie  time, 
without  subjecting  his  principal  to  liability  in  a  civil  action  brougiit  by  the 
person  arrested.  The  determination  of  tliis  (juestion  must  di'i)end  u]Mm  the 
laws  in  force  in  tliis  state,  prescribing  tlie  powers  and  duties  of  sheriffs  and 
their  deputies.    Key.  St.  U.  S.  g  7S8. 

*'  It  will  not  be  questioned  that  tiie  deputies  had  the  same  authority  to 
arrest  as  would  have  had  the  marshal,  under  the  same  circumstiuices.  It 
hiis  been  held  in  England,  and  in  some  of  the  courts  of  this  country,  tliat  a 
person  may  use  necessary  force  to  resist  arrest,  in  aca.se  in  whicli  a  warrant 
is  necessary  to  authorize  it,  unless  the  officer,  at  the  i)laco  and  time  he 
attempts  to  make  the  arrest,  has  the  warrant  in  his  po-ssession,  and  that 
such  violence  toward  the  officer  will  not  constitute  a  battery,  or  other  like 
offense,  and  further,  that  the  absence  of  the  wairant  may  affect  the  gi-ade 
of  offense  committed  by  violent  resistance  rt^ulting  in  the  dinith  of  tlie 
officer.  Oalliurd  v.  LaxUm,  9  Cox'  Crim.  Cas.  127;  Cwld  v.  Cal)e,  1  EL\ch. 
Div.  352;  Reg.  v.  Chapman,  13  Cox'  Grim.  Cjis.  4;  People  v.  McLean,  68 
Mich.  480;  IVehb  v.  State.  51  N,  J.  L.  189.  In  these  cases,  warrants  existed 
whicli  would  have  authorized  an  arrest.  In  crimes  such  as  assault,  bat- 
tery or  homicide,  the  animus  with  which  the  act  is  done  becomes  an  ele- 
ment of  the  offense,  and  it  may  very  properly  1h?  held,  where  the  arrest  of 
a  person  is  attempted  without  warrant,  in  a  case  in  which  warrant  is  nect*- 
6.u-y,  resistance  was  made  under  the  belief  that  the  act  w.san  unauthorized 


STATE  V.  LEWIS. 


67 


interferoncp  with  right  to  perccnal  liberty,  which  every  person  has  thf  right 
to  resist  by  the  use  of  such  force  as  is  necessary.  In  such  cases  the  exist- 
ence of  the  writ,  if  not  present,  ought  not  to  deprive  the  person  i  eslsting 
arrest  of  the  right  to  act  and  base  his  belief  upon  the  facts  as  they  tuen 
appeared  to  him,  and  to  have  his  intent,  upon  being  charged  with  crime, 
determined  thereby.  The  cases  referred  to,  in  general  terms  declare  arrest 
illegal,  in  cases  in  which  warrat'    '  i  -taary,  unless  the  warrant  be  in  the 

possession  of  the  officer  at  in  .uU  place  of  arrest;  but  they  were  all  crim- 
inal cases,  in  wl.ich  the  animus  of  vhe  party  resisting  was  a  vital  tpiestion. 
It  ouglit  not  to  be  denied  that  the  law  contemplates  that  the  warrant 
directing  the  arrest  of  a  person  charged  wit)  crime  will  be  in  the  ^lossession 
of  the  officer  when  he  makes  an  arrest  ui  k  ,  for  he  is  required  to  exhibit 
it,  if  called  upon  to  do  so;  and  this  is  based  on  a  wise  public  policy,  one 
purpose  of  which  is  that  the  officer  may  have  to  exhibit  such  evidence  of 
iiis  authority  to  make  the  arrest  as  will  be  deemed  sufficient  to  takr  from 
the  person  whose  arrest  is  commanded  all  right  to  question  the  authority  of 
the  officer.  Does  it,  however,  folow  fi^.m  this  that  the  absence  of  the 
warrant  at  the  time  and  place  of  arrt  st,  if  in  fact  a  valid  warrant  was  in 
possession  of  the  officer  commanding  hiiu  to  make  the  arrest,  will  entitle 
the  person  arrested  to  maintain  a  civil  action  as  for  trespass  or  false  im- 
prisonment? The  correct  answer  to  this  must  depend  upon  a  determination 
of  the  facts  which  confer  authority  on  an  officer  to  arrest  a  person  charged 
with  crime,  for,  if  the  authority  exista,  an  irregular  exercise  of  it  can  not 
give  cause  for  civil  action,  nnless  that  irregularity  or  mode  of  execution  be 
of  a  character  to  work  loss  or  deprivation  of  freedom  of  action  to  the  person 
arrested,  which  would  not  have  followed  arrest  in  every  respect  regular. 
When  it  is  said  that  arrest  may  be  made  without  warrant,  it  is  meant  that 
the  issuance  of  warrant  is  unnecessary;  but,  as  no  facts  are  shown  to  have 
existel  that  would  have  authorized  the  arrest  of  Arnold  without  warrant, 
it  is  unnocessaiy  to  inquire  when  such  arrests  may  be  made. 

"  The  first  fact  necessary  to  confer  authority  on  a  sheriff,  or  officer  of  like 
powers,  in  a  case  in  which  warrant  is  necessary,  is  the  existence  of  a 
warrant,  issued  by  some  .  nagistrate  or  court  having  power  under  the  law 
to  issue  it,  commanding  him  to  make  the  arrest.  If  the  waiTunt  be  issued 
by  such  magistrate  or  tribunal,  and  be  in  the  form  prescribed  by  law,  so  far 
as  the  officer  is  concerned  to  whom  it  is  directed,  it  must  be  treated  as  con- 
clusive evidence  that  the  preliminary  facts  were  shown  which  authorized 
it  to  issue.  The  next  step  is  the  delivery  of  the  warrant  to  the  person  who 
is  commanded  to  execute  it,  and,  when  so  delivered,  the  officer's  obligation 
and  duty  to  obey  it»  command  become  fixed,  and  it  is  clear  that  authority 
to  do  the  act  commanded  must  co-exist  with  the  obligation  or  duty.  These 
are  the  essentials  which  confer  on  a  sheriff,  or  like  officer,  the  authority  to 
arrest  on  warrant,  and  so  long  as  they  continue  operative  the  authority 
must  exist.  The  manner  and  circumstances  of  execution  relate  not  to  the 
authority,  unless  expressly  or  by  necessary  intendment  made  to;  and,  if  the 
law  prescribes  the  modes  of  execution,  this  is  either  to  secure  the  execution 
of  the  process,  or  to  guard  the  person  whose  arrest  is  commanded  from  un- 
necessary annoyance  or  oppression,  and  a  departure  in  this  respect  ought 
noi  to  affect  the  question  of  authority.  But  if  legal  injury  results  to  the 
person  arrested,  through  departure  from  the  procedure  prescribed,  this 
would  give  ground  for  civil  ac^tion;  but  no  legal  injury  could  result  if  the 


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58 


AMERICAN  CRIMINAL  REPORTS. 


ortioor,  acting  within  the  territory  to  which  his  duties  pertain,  uses  no  more 
force  in  executing  a  valid  warrant  than  is  necessary,  and  in  other  respects 
obeys  the  writ.  If  an  officer  uses  more  force  than  is  necessary  to  arrest  and 
detain,  he  becomes  civilly  liable,  in  so  far  as  would  any  other  wrongdoer; 
and  if  he  refuses  to  exhibit  the  warrant,  when  called  upon  to  do  so,  or  to 
make  known  under  what  authority  ho  asniines  the  right  to  arrest,  ho  may 
thereby  forfeit  the  right  ho  would  otherwise  have  to  compensation  for  hurt 
received  by  force,  and  in  resisting  arrest.  State  v.  Phinncy,  42  Me.  390.  If 
a  person  arrested  should  ask  a  court  to  discharge  him  on  the  ground  that 
more  force  was  used  than  necessary  to  arrest  and  detain  him,  on  the  ground 
that  he  was  not  informed  at  time  of  arrest  of  the  authority  under  which 
the  officer  wiis  acting,  or  that  the  warrant  was  not  exhibited  to  him  on  de- 
mand, no  court  would  discharge  him,  if  it  appeared  that  the  arrest  was 
made  under  a  valid  warrant  delivered  to  an  officer  authorized  to  execute 
it,  who,  in  person  or  by  deputy,  had  made  the  arrest.  This  woidd  follow 
because  the  arrest  and  detention  would  be  under  the  authority  of  law,  and 
therefore  legal.  'If  the  officer  expressly  declare  that  he  arrests  under  an 
illegal  preeept  and  on  that  only,  yet  ho  is  not  guilty  of  false  imprison- 
ment, if  he  had,  at  the  time,  a  legal  one;  for  the  lawfulness  of  the  arrest 
does  not  depend  on  what  he  says,  but  what  he  has.  State  v.  Kiibij,  3  Ired. 
201;  Slate  v.  Elrod,  6  Ired.  250.  Undoubtedly,  if  the  jailer  had  discharged 
the  plaintiff,  the  sheriff  would  have  been  liable  for  an  escni)e  on  Jones' 
execution;  for  the  jailer  is  the  sheriff's  deputy,  and  bound  to  take  notice 
of  the  writs  in  the  hands  of  his  superior,  and  a  detention  by  the  jailer  is 
justified,  if  one  by  tlie  sheriff  himself  would  have  been,  by  the  same 
process.'  Meedn  v.  Carver,  8  Ired.  298.  The  same  rule  as  to  legality  of 
arrest  was  asserted  by  Lord  Holt  in  Orenville  v.  ColUije  of  Pliynicians,  12 
Mod.  380." 

Keeessitj/  for  warrant. — Where  an  officer  rightfully  arrests  a  person 
without  a  warrant  and  makes  a  complaint  for  the  offense  before  the  district 
court,  he  is  not  guilty  of  a  trespass  because  the  district  judge  fails  to 
issue  a  warrant.    Douglass  v.  Barber,  28  Atl.  R.  (R.  I.)  80.^. 

Arrest  on  suspicion — Identification  from  photograph — 0£icer  held  to 
strict  investigation. — It  is  undoubtedly  true  that  an  officer  is  justified 
if  he  makes  an  arrest  for  a  felony  without  a  warrant,  although  he 
has  no  personal  knowledge,  but  acts  u\Km  information  received  from 
one  whom  he  has  reason  to  rely  upon,  although  it  may  be  that  the 
person  so  charged  is  not  guilty,  or  no  felony  in  fact  be  committed. 
Samuel  V,  Ptii/ne,  1  Doug.  359;  Hohbsii.  Jiransenmh.  3  Camp.  420;  Holleyv. 
Mix,  3  Wend.  350;  Burns  v.  Erben,  40  N.  Y.  403;  Cahill  v.  People,  106  111. 
621;  Crock.  Slier,  g  49;  1  Chit.  Crirn.  Law,  22.  In  Williams  v.  Dawson,  re- 
ferred to  in  Hobbs  v.  Branscomb,  supra,  BuUer,  J.,  laid  down  the  rule 
that  "  if  a  peace  officer,  of  his  own  head,  takes  a  person  into  custody  on 
suspicion,  he  must  prove  that  there  was  such  a  crime  committed."  The 
rule  is  laid  down  by  Mr.  Bigelow,  in  his  work  on  Torts  {4th  Ed.,  p.  140), 
that  the  officer,  in  executing  his  process,  must  arrest  the  person  nanii'd  in 
it.  If  he  do  not,  though  the  arrest  of  the  wrong  person  was  made  through 
a  mere  mistake,  it  may  be  a  case  of  false  imprisonment;  citing  Coote  v. 
Lighworth,  Moore,  457;  Dnnston  v.  Puterson,  2  C,  B.  (N.  S.)  495.  A  num- 
l)er  of  authorities  may  be  cited  in  supiwrt  of  this  rale  :  Add.  Torts,  Sec. 
805;  Duvies  v.  Jenkins,  11  Mees.  &  W.  754;  Gwynne,  Slier.  09;  Griswold  v. 


STATE  V.  LEWIS. 


50 


Sri1gwk-Jc,  6  Cow.  460;  Lavinn  v.  State,  63  Ga.  513;  Hays  v.  Creary,  00  Tex. 
445:  Comer  v.  Knowles,  17  Kan.  436.  I  do  not  think,  however,  that  an 
oftitor  who,  through  an  honest  mistake,  and  after  such  investigation  into 
th(^  facts  and  circumstances  as  the  particular  case  enables  him  to  make, 
upon  a  charge  of  felony,  arrests  a  party,  having  reasonable  gi'ounds  to  sup- 
pose him  to  be  the  guilty  party,  and  the  one  named  in  his  warrant,  is  liable 
to  the  arrested  party,  who  turns  out  to  be  innocent,  for  whatever  damages 
he  niiiy  suffer  in  consequence  of  the  arrest.  Such  a  rule  would  materially 
interfere  with  the  apprehension  of  fugitives  from  justice.  Probable  cause 
is  a  justifleation  for  criminal  proceedings.  Criminals  who  seek  safety  in 
flight  are  usually  apprehended  through  officers  in  other  localities,  and  by 
means  of  photographs  and  descriptions  of  the  person.  As  is  said  in  Brock- 
xmji  V.  Crawford,  3  Jones  (N.  C),  433,  the  law  encourages  every  one— as 
well  private  citizens  as  officers — to  keep  a  sharp  lookout  for  the  apprehen- 
sion of  felons,  by  holding  them  exempt  from  I'esponsibility  for  an  arrest  or 
prosecution,  although  the  party  charged  turns  out  not  to  be  guilty,  unless 
tlu'  arrest  is  made,  or  the  prosecution  is  instituted,  without  probable  cause, 
and  from  malice.  In  Eanes  v.  State,  6  Humph.  53,  a  murder  had  been 
committed  in  Franklin  county  by  one  Payne,  who  made  his  escape,  and  the 
goveinor  issued  a  proclamation  offering  a  reward  for  the  appreliension  of 
tlie  criminal.  One  Martin  was  arrested  in  Sullivan  county.  The  particu- 
lars of  personal  description  annexed  to  the  governor's  ])roclamation  applied 
in  some  respects  to  Martin,  and  in  othere  did  not.  The  coui-t  say:  "The 
liberty  of  the  citizen  is  so  highly  regarded  that  the  officer  arrestmg  a  sup- 
posed felon  without  warrant  iimst  act  in  good  faith,  and  upon  grounds  of 
probable  suspicion  that  the  person  to  be  arrested  is  the  actual  felon.  If  he 
maj'  not,  under  such  circumstances,  make  an  arrest,  the  escape  of  crimi- 
nals would  be  but  little  obsti^ucted  by  th«'  official  proclamation  of  governors, 
and  the  jwlice  of  the  state,  instead  of  being,  as  public  policy  urgently  re- 
(luircs,  vigilant  and  effective,  would  be  altogether  the  contrary."  The  rule 
was  laid  down  in  Maliniemi  v.  Gronlund  (Mich.),  92  Mich.  222,  that  a 
private  person  has  a  right  to  arrest  a  man  on  suspicion  of  felony,  without 
a  warrant,  but  if  he  does,  and  it  turns  out  that  the  wrong  man  is  impris- 
oned, he  must  be  prepared  to  show,  in  justification — first,  that  a  felony  has 
b'en  committed;  and,  second,  that  the  circumstances  under  which  he  acted 
were  such  that  any  reasonable  pei"son,  acting  without  passion  or  prejudice, 
would  have  fairly  suspected  that  the  plaintiff  committed  it,  or  was  impli- 
cated in  it.  This  rule  is  8upi)orted  by  a  long  line  of  authorities.  Cooley, 
Torts,  (2(1  Ed.)  p.  202,  and  cases  cited.  But,  as  Mr.  Cooley  says,  "A  peace 
officer  may  properly  be  treated  with  more  indulgence,  because  he  is 
S]ie('ially  charged  with  a  duty  in  the  enforcement  of  the  laws.  If  by  him 
an  arrest  is  made  on  reasonalile  grounds  of  belief,  he  will  be  excused,  even 
though  it  appi^ar  afterward  that  in  fact  no  felony  has  been  committed."  7 
Anier.  &  Eng.  Enc.  Law,  p.  675,  and  cases  cited.  In  Rohan  v.  Sarvin,  5 
Cash.  281,  the  court  say:  "  The  public  safety  and  the  due  apprehension  of 
criminals  charged  with  heinous  offenses,  require  that  such  arrests  sliould 
be  made  without  warrant  by  officers  of  vhe  law.  Constables  and  other 
peace  officers,  acting  officially,  the  law  clothes  with  gn.'ater  authority  than 
private  persons,  and  they  are  held  to  be  justified  if  they  act,  in  making 
the  arrest,  upon  probable  and  reasonable  grounds  for  believing  the  ])arty 
guilty  of  a  felony;  and  this  is  all  that  is  necessary  for  them  to  sliow  in  order 


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AMERICAN  CRDIINAL  REPORTS. 


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1: 


to  sustain  a  justification  of  an  arrest  for  the  purpose  of  detaining  the  party 
to  await  further  proceedings,  under  a  complaint  on  oath,  and  a  warrant 
thereon."  Upon  the  same  principle,  and  for  the  same  reason,  an  officer 
making  an  arrest  upon  a  warrant,  or  upon  knowledge  th»t  a  warrant  is  out, 
of  one  whfffle  person  is  unknown  to  him,  who  can.  under  the  circumstances, 
only  act,  if  he  can  act  at  all,  upon  photograph  or  description,  or  both,  should 
be  excused  if  he  act  honestly  and  prudently,  making  such  inquiry  and  ex- 
amination as  the  circumstances  of  each  particular  case  affords  him  an 
opiortunity  to  make.  It  is  practically  impossiMe  to  apprehend  runaways 
in  any  other  way,  and  the  protection  of  society  from  these  major  crimes 
demands  that  some  latitude  be  given  to  these  officers  of  the  law,  who  are 
Bppiirated  from  local  influences  and  clamor,  and  must  be  presumed  to  act 
fairly  anil  honestly.  But  in  all  such  cases,  where  the  facts  are  not  disputed, 
the  question  of  probable  cause  is  one  of  lasv.  for  the  court.  Hamilton  v. 
Smith,  80  Mich.  222,  227;  Burns  v.  Erben,  40  N.  Y.  402;  McCarthy  v.  De 
Armit,  99  Pa.  St.  63.  To  afford  a  justification,  there  must  be  not  only  a  real 
belief,  and  reasonable  grounds  for  it  (1  Chit.  (^rim.  Law  15.)  but,  where 
there  is  an  opportunity  for  incjuiry  and  investigation,  incjuiry  and  investi- 
gation should  Ije  made.  In  Ilully  v.  Mix,  3  Wend.  350,  the  court,  referring 
to  an  arrest  made  upon  information  received,  say:  "  The  officer  should 
not,  however,  receive  every  idle  rumor,  but  should  make  such  diligent 
inquiry  touching  the  truth  of  the  charge  as  the  circumstance*  will  permit, 
before  he  assumes  to  arrest  one  upon  the  information  of  another." 

An  officer  is  bound  to  use  all  reasonable  means  to  avoid  possible  mistake 
and  the  arrest  of  an  innocent  man.  Stanton  v.  Hart,  27  Mich.  639.  He  is 
not  justified  in  relying  uix)n  a  personal  resemblance,  as  indicati'd  by  a 
comparison  with  a  photograph  {Suay  v.  fool,  2  Stew.  &  P.  196),  especially 
when  there  is  within  easy  reach  means  of  identification.  An  officer  is  not 
warranted  in  relying  upon  circumstances  deemed  by  him  suspicious,  when 
the  means  are  at  hand  of  either  verifying  or  dissipating  those  suspicions 
without  risk,  and  he  neglects  to  avail  himself  of  those  moans.  Filer  v. 
Smith,  96  Mich.  347. 

Wrongful  Arrest— Misnomer.— In  IVest  v.  Cabell,  Unitctl  States  Supreme 
Court  (14  Supreme  Court  Reporter,  751).  Justice  Gray  said:  "  By  the  com- 
mon law,  a  warrant  for  the  arrest  of  a  person  charged  with  crime  nmst 
truly  name  him,  or  descril)e  him  sufficiently  to  identify  him.  If  it  does 
not,  the  officer  making  the  arrest  is  liable  to  an  action  for  false  imprison- 
ment; and  if,  in  attempting  to  make  the  arrest,  the  officer  is  killed,  this  is 
only  manslaughter  in  the  person  wliose  liberty  is  invaded.  1  Hale,  P.  C. 
577,  580;  2  Hale,  P.  C.  112,  114;  Post.  Crown  Law,  312;  1  East,  P.  C.  310;  1 
Chit.  Cr.  Law,  39,  40;  Hucklev.  Money,  2  Wils.  205;  Money  v.  Leach,  3  Bur- 
rows, 1743,  1766.  1767,  1  W.  Bl.  555,  561,  562;  Rex  v.  Hood,  1  Moody,  Crown 
Cas.  281;  Hoye  v.  Bush,  1  Man.  &  G..  775,  2  Scott,  N.  R.  80.  Likewise,  a 
warrant  of  arrest  in  a  civil  action,  which  d(K!s  not  name  or  describe  the 
person  to  be  arrested,  is  no  justification  of  the  officer.  Cole  v.  Hindson,  6 
Term  R.  284;  Shadijett  v.  Clipson,  8  East  328;  Finch  v.  Cocken,  2  Comp,  M. 
«&  R.  196;  1  Gale,  130,  and  3  Dowl.  678;  Kelly  v.  Latcrence,  3  Hurl  &  C.  1." 

The  principle  of  the  common  law,  by  which  warrants  of  arrest,  in  cases 
criminal  or  civil,  must  specifically  name  or  de»cril)e  the  pei-son  to  be 
arrested,  has  been  affirmed  in  the  Americar  constitutions;  and  by  the  great 
weight  of  authority  in  this  country,  a  warrant  that  does  not  do  so  will  not 


STATE  V.  LEWIS. 


61 


justify  the  officer  in  making  the  arrest.  Com.  v.  Crotty,  10  Allen,  40&,' 
Grmrold  v.  Sedgu'ick,  6  Cow.  456,  1  Wend.  126;  Mead  v.  Hmi's,  7  Cow.  332; 
Ilulku  V.  Mix,  8  Wend.  350,  354;  Scott  v.  Ely,  4  Wend.  555;  Qurnaey  v. 
iMveil,  9  Wend.  819;  Melvin  v.  Fisher,  8  N.  H.  407;  Clark  v.  Bragdoii,  37  N. 
H.  503,  oG5;  Johnston  v.  Riley,  13  Ga.  97,  137;  Scheer  v.  Keown.  89  Wis.  586; 
Raffevtij  V.  People,  69  111.  111. 

In  Com.  V.  Crotty,  for  instance,  in  which  Morris  Crotty  and  othera  were 
indicted  and  convicted  for  a  riot  in  resisting  the  arrest  of  Crotty  upon  a 
warnmt  commanding  the  arrest  of  "John  Doe  or  Richard  Roe,  whose  other 
or  true  name  is  to  your  complainant  unknown,"  the  conviction  was  set 
aside  by  the  supreme  judicial  court  of  Massachusetts,  upon  the  grounds 
that  the  warrant  was  insufficient,  illegal  and  void,  because  it  did  not  con- 
tain f 'rotty's  name,  nor  any  descrijition  or  designation  hy  which  he  could 
be  known  and  identified  ^s  the  person  against  whom  it  was  issued,  and 
was,  ill  effect,  a  general  warrant,  uiron  which  any  other  person  might  as 
well  have  been  arrested,  as  being  included  in  the  description,  and  that: 
"  The  warrant  being  defective  and  void  on  its  face,  the  officer  had  no  right 
to  arrest  the  person  on  whom  he  attempted  to  serve  it.  He  acted  without 
warrant,  and  was  a  trespasser.  The  defendant  whom  he  sought  to  arrest 
had  a  right  to  resist  by  force,  using  no  more  than  was  necessary  to  resist 
the  unlawful  acts  of  the  officer.  An  officer  who  acts  under  a  void  precept, 
and  a  person  doing  the  same  act  wjio  is  not  an  officer,  stand  on  the  same 
footing;  and  any  third  person  may  lawfully  interfere  to  prevent  an  arrest 
under  a  void  warrant,  doing  no  more  than  is  necessary  for  that  puriwse." 
10  All.n,  404,  405. 

The  fourth  article  of  amendment  of  the  constitution  of  the  United 
States  declares  that  "the right  of  the  i)eople  to  l>e  secure  in  their  jiei-sons, 
houses.  ]iapers  and  effects,  against  unrea-sonable  searches  and  seizures, 
shall  not  be  violated;  and  no  warrants  shall  issue,  but  ujKjn  proliable  cause, 
supported  by  oath  or  affirmation,  and  particularly  describing  the  place  to 
be  searche<l,  and  the  persons  or  things  to  be  seized." 

The  provision  of  section  1014  of  tiie  Revised  Statutes,  which  authorizes 
an  o(Ten<ler  against  the  laws  of  the  United  States  to  be  arrested  and  im- 
priscMied  or  bailed  by  a  judge  of  the  United  States  or  a  commissioner  of  the 
circuit  court  in  any  state  where  the  offender  may  be  found,  "  and  agreeably 
to  the  usual  mode  of  process  against  offenders  in  such  state,"  is  necessarily 
fiulioidinate  to  the  declaration  of  the  constitution  that  all  warrants  must 
particularly  descritn'  the  person  to  be  seized. 

The  laws  of  the  State  of  Texns  in  this  regard  are  in  conformity  with  this 
article  of  the  constitution  of  the  United  States.  By  the  couMitutiou  of 
Texas  (article  1,^9),  "no  warrant  to  search  any  jilace  or  to  s»nze  any  person 
or  tiling  shall  issue  without  describing  them  as  near  as  may  be,  nor  with- 
out probable  cause,  supjiorted  by  oath  or  affirmation."  And  by  the  statutes 
of  the  state  the  warrant,  as  well  as  the  complaint,  "  must  sjiecify  the  name 
of  the  person  whose  arrjwt  is  ordered,  if  it  ba  known;  if  not  known,  then 
some  reasonably  definite  description  must  be  given  of  him;"  and  "the 
officer  or  person  executing  a  warrant  of  arrest  shall  take  the  person  whom 
he  is  directed  to  arrest  forthwith  before  the  magistrate."  Cr.  Cotle  Tex. 
arts.  233,  236,  247;  .4//o>-d  v.  State.  8  Tex.  App.  545,  562;  Hays  v.  Creary,  60 
Tex.  445:  Formtmlt  v.  Hylton.  06  Tex.  288,  1  S.  W.  376. 

Tilt  only  cases  cited  by  the  defendants  in  error  which  have  any  tendency 


.ii. 


'ffrf 


ill 


C2 


AMERICVN  CRIMINAL  REPORTS. 


to  support  the  rulings  at  tlie  trial  were  in  Delaware,  in  which  the  chief  jus- 
tice dissented,  iind  in  Iowa  and  Arizona,  wliose  statutes  provided  tlnit  "tlie 
warrant  must  specify  tlie  name  of  the  defendant,  and,  if  it  be  unitnown  to 
the  maKistratc,  may  designate  him  by  any  name;"  and  in  none  of  those 
cases  was  any  notice  taken  of  opposing  precedents  or  constitutional  injunc- 
tion. n<tilcy  V.  M'iggins,  5  Har.  (Del.)  402;  Allen  v.  Leonard,  28  Iowa,  r)29; 
Code  Iowa  1800,  §  4535;  Williams  v.  Tidball  (Ariz.),  8  Pac.  351;  Conip. 
Laws  Ariz.  1877,  c.  11,  §  89. 


Caklton  v.  People. 
(150  111.  181.) 

Arson:    Evidence  —  Tlireats  of  third  party  —  Instructions  —  Iteasomihlc 

Doubt — Alibi. 

1.  Evidence  that  a  certain  barn  was  burned  during  the  night;  that  defend- 

iint <  angry  with  the  owner  of  the  barn,  and  had  on  the  previous 

day  threivtened  to  burn  it;  that  fresh  footprints  leading  from  the  road 
to  the  barn,  .ind  matching  defendant's  feet,  were  found  on  the  morn- 
ing after  tlie  Are;  and  that  defendant  had  j)assed  by  tlie  place  during 
the  night,  and  had  stopi)ed  at  a  house  on  the  way  to  get  some  matches 
—is  sufKcient  to  warrant  a  conviction. 

2.  Evi(h'nce  that  another  person  had  also  threatened  to  burn  said  barn  is 

inadmissible  as  being  irrelevant,  and  also  as  beinp-  mere  hearsay. 

3.  It  is  |)i*ope'"  to  instruct  the  jurj'  tliat  "  the  reasonab  '  doubt  tlie  jury  are 

permitted  to  entertain  must  be  a.s  to  the  guilt  o^  the  accused  on  the 
wiiole  of  tlie  "vidence,  and  not  as  to  any  particular  fact  in  tlie  case," 
and  to  refuse  ti>  instruct  them  to  ac(]uit  if  they  entertain  imy  rea.son- 
able  doubt  as  to  defendant's  presence  at  the  scene  of  the  crime  when  it 
occurred. 

4.  An  instructi'  n  that,  to  obtain  a  conviction  on  circumst.intial  evidence 

alone,  the  people  must  show  facts  and  circumstances  absolutely  incon- 
sistent, on  any  reasonable  hypothesis,  with  the  innocence  of  the 
accused,  and  incapable  of  explanation  on  any  other  theory  than  that  of 
his  guilt,  is  erroneous,  since  circumstantial  evidence  wldch  convinces 
the  jury,  to  a  moral  certainty,  of  defendant's  guilt,  is  sufficient. 

Error  to  Circuit  Court,  Johnson  County;  A,  K.  Vickors, 
Judge. 

Indictment  of  Jonathan  Carlton  for  arson.  Defendant  was 
convicted,  and  he  brings  error.    Atfii-med. 

Morris,  Moore  cf"  VanMrl%  for  plaintiff  in  error. 
Maurice  T.  Moloney,  Attorney  General,  and  Geo.  G.  Gilles- 
pie, for  the  People. 


1 


CARLTON  V.  PEOPLE. 


C3 


^m 


;^^A^,u^DKR,  J.  This  is  an  indictment  a^^ainst  tlio  plaiiitiir  in 
error  for  arson.  The  indictment  charges  him,  in  tlie  usual 
form,  witli  setting  fire  to  and  burning  the  barn  of  one  Hob 
lioy  Iiidcnhour.  The  jury  found  him  guilty,  and  fixed  his 
])unishinont  at  imprisonment  in  the  penitentiary  for  a  term  of 
tour  years.  Motions  for  new  trial  and  in  arrest  of  judgment 
were  made  and  overruled.  Judgment  was  rendered  anil  sen- 
tence ])ronounced,  in  accordance  with  the  verdict. 

On  the  afternoon  of  Saturday,  April  9,  1892,  plaintiff  in 
error  was  arrested  for  a  violation  of  a  town  ordinance  at 
Vienna,  in  Johnson  county,  by  the  town  marshal,  assisted  by 
one  of  the  deputy  sheriffs,  and  also  by  the  said  Kidenhour.  lie 
was  taken  to  the  county  jail  in  an  intoxicated  condition,  hav- 
ing a  knife  in  his  hand  and  a  revolver  in  his  pocket.  He  and 
llidenhotir  each  lived  in  the  country,  about  four  and  a  half 
miles  from  Vienna,  and  had  ridden  into  town  together  on  the 
morning  of  that  day.  His  arrest  was  made  with  difficulty, 
and  after  a  scuffle.  By  direction  of  Kitlenhour  his  knife  and 
revolver  were  taken  away  from  him.  While  he  was  lying 
upon  his  back  in  the  hallway  of  the  jail,  his  arms  and  feet 
being  held  by  those  who  arrested  him,  he  said :  "  Oh,  yes, 
I'obllidenhour,  you  live  in  the  country,  and  j'ou  will  think  of 
this,  God  damn  you,  when  3'our  barn  is  on  lire."  He  repeated 
the  remark  several  times,  varying  the  expression,  saying, 
according  to  one  witness:  "  You  will  think  of  this  Avhen  you 
see  your  barn  in  flames ; "  according  to  another :  "  You  will 
think  of  this  when  your  barn  is  burned.  Your  barn  is  on  a 
high  hill.  It  will  look  well  when  it  is  burning."  He  was  re- 
leased from  jail  between  10  and  11  o'clock  on  the  night  of  that 
same  day,  and  left  town  about  11  o'clock  in  company  with 
Thomas  Verhines  and  Edward  Hogg,  each  of  the  three  riding 
on  horseback.  The  plaintiff  in  error  stopped  on  the  way  at 
the  house  of  a  Mrs.  Bridges,  and  obtained  some  matches. 
They  rode  together  about  a  mile,  when  they  separated,  Ver- 
hines going  east,  and  Carlton  and  Hogg  going  south.  Plaint- 
iif  in  error  and  Hogg  continued  to  ride  together  about  a  mile 
further,  where  they  separated,  the  former  going  southeast,  and 
the  latter  going  southwest.  The  home  of  Carlton  was  about 
two  miles  and  that  of  Hogg  about  two  and  a  half  miles  from  the 
point  where  they  separated.  In  going  to  his  home  from  this  point 
plaintiff  in  error  would  pass  in  sight  of  Ridenhour's  house. 


* 


U 


AMERICAN  CRIMINAL  REPORTS. 


m 


•I 


Ridonliour's  barns  were  burned  that  ni<?ht.  lie  says  tliat  he  went 
to  bed  between  h)  and  11  o'clock,  and  that  it  was  after  midnight 
when  he  lirst  saw  the  tire.  On  the  next  day— Sunday,  April 
loth— an  examination  was  made  of  the  premises.  Tracks 
were  found  south  of  the  barn,  in  a  path  leading  to  the  high- 
way, which  ran  in  the  general  direction  of  the  house  of  plaint- 
iff in  error.  Mud  was  found  u])on  the  fence  at  the  corner  of 
the  field,  indicating  that  some  one  had  climbed  over  the  fence. 
The  oats  in  the  field  had  not  come  up.  An  examination  of  the 
tracks  showed  that  one  foot  had  made  a  deeper  impression 
than  the  other.  Carlton  was  arrested  on  that  Sunday  after- 
noon. A  measurement  of  the  tracks  sliowed  that  they  corre- 
sponded in  length  with  tracks  made  by  Carlton  in  the  road  on 
that  day,  and  with  the  shoos  worn  by  him  on  that  afternoon. 
It  was  proven  that  he  was  lame,  and  walked  with  "  a  kind  of 
hop."  One  of  the  witnesses  says:  "The  foot  ho  limped  on 
corresponded  to  the  irregular  tracks  in  the  field."  Two  barns 
were  burned,  containing  corn,  hay,  mules,  and  horses.  The 
horses  escaped,  but  one  of  the  mules  was  burned  to  death,  and 
the  corn  and  hay  were  destroyed.  Hogg  says  that  he  saw  no 
fire  when  he  passed  with  Carlton. 

The  only  evidence  intrmluced  on  the  defense  seems  to  have 
had  for  its  object  the  proof  of  an  alibi.  The  testimony  tends 
to  show  that  the  barns  Avere  on  fire  after  midnight,  and  some- 
whei'e  about  1  o'clock,  though  one  of  the  witnesses  says  he 
saw  the  fire  at  4  o'clock  in  the  morning,  and,  when  he  saw  it, 
went  to  it  from  his  house,  a  half  mile  distant,  and  found  the 
barns  "  pretty  well  all  burned  down."  The  evidence  does  not 
certainly  fix  the  hour  when  the  plaintiff  in  error  reached  his 
home  on  the  night  of  the  fire.  His  mother  swore  that  "  it  was 
about  12  o'clock  or  near  that."  One  of  his  sisters  swore 
that  she  heard  the  clock  strike  twelve,  and  another  that  she 
heard  it  strike  one,  after  his  arrival. 

Counsel  for  plaintiff  in  error  make  the  general  objections 
that  there  is  an  absence  of  evidence  relative  to  the  corpxia 
delicti,  and  that  the  evidence  is  purely  circumstantial.  "  The 
proof  of  the  charge  in  criminal  causes  involves  the  proof  of 
two  distinct  propositions :  First,  that  the  act  itself  was  done; 
and,  secondly,  that  it  was  done  by  the  charged,  and  by  none 
other— in  other  words,  proof  of  the  carpus  delicti  and  of  the 
identity  of  the  prisoner."    3  Greenl.  Ev.,  §  30.    Here  the  act 


CARLTON  V.  PEOPLE. 


05 


(lone,  wliich  was  to  be  proven,  was  the  burning  of  the  barn. 
It  was  also  ro(juired  to  be  proven  that  the  barn  was  burned  by 
the  iilaintifF  in  error,  and  that  such  burning  was  done  with 
t'olonious  intent,  or,  in  the  language  of  the  statute,  "  willfully 
and  maliciously."  1  Starr  &  C.  Ann.  St.,  ]>.  759;  3  Greenl. 
Ev.,  J},^  55,  5(1.  It  lias  been  said  that  in  arson  the  corpus  delicti 
consists  not  only  of  a  fact  that  a  building  has  been  burned, 
hut  also  the  fjict  that  it  has  been  willfully  fired  by  some 
responsil)le  person.  Winshno  v.  State,  76  Ala.  42.  The  main 
fact,  liowever,  which  is  to  be  proven  in  the  first  place,  is  the 
iiurning  of  the  building.  When  that  fact  is  established,  then 
it  is  necessary  to  show  h(»w  the  act  was  done,  and  by  whom. 
We  think  that,  in  the  present  case,  the  facts  that  the  barns 
were  burned  was  clearly  and  satisfactorily  proven;  and  the  cir- 
cumstances were  such  as  to  exclude  accident  or  natural  causes 
as  the  origin  of  the  fire.  When  the  general  fact  is  thus 
])roved,  a  foundation  is  laid  for  the  introduction  of  any  legal 
and  suHicient  evidence  that  the  act  was  committed  by  the 
accused,  and  that  it  was  done  with  criminal  intent.  Sam  v. 
Stati',  ;{3  Miss.  347;  Phillips  v.  State,  29  Ga.  105.  Such  evi- 
dence need  not  be  direct  and  ))ositive,  but  may  be  circumstan- 
tial, in  its  character.  Winsloio  v.  State,  supra.  In  both  crim- 
inal and  civil  cases  "a  verdict  may  be  well  founded  on 
circumstances  alone;  and  these  often  lead  to  a  conclusion  far 
more  satisfactory  than  direct  evidence  can  produce."  1  Greenl. 
Ev.,  $J  13a.  After  a  careful  examination  of  the  evidence  in 
this  case  we  are  not  prepared  to  say  that  the  jury  were  not 
warranted  in  linding  the  verdict  returned  by  them.  Among  the 
circumstances  which  may  be  judicially  considered  as  leading  to 
im|)ortant  and  well-grounded  presumptions  are  "  motives  to 
crimes,  declarations  or  acts  indicative  of  guilty  consciousness 
or  intention,  [and]  preparations  for  the  commission  of  crime." 
Wills.  Circ.  Ev.,  p.  39.  It  appears  from  the  facts  above  recited 
that  there  was  evidence  here  which  tended  to  show  the  exist- 
ence of  just  such  circumstances  as  are  thus  indicated — revenge 
for  arrest  and  imprisonment,  threats  that  the  barns  would  be 
burned,  and  halting  on  the  way  to  obtain  matches.  The  evi- 
dence of  the  footprints  and  their  correspondence  with  the 
defendant's  feet  was  competent,  and,  though  "not  by  itself  of 
any  independent  strength,  is  admissible  with  other  proof  as 

tending  to  make  out  a  case."    Whart,  Cr.  Ev.  (8th  £d.),  §  13 Q, 
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In  Winsloic  v.  State,  supra,  where  the  indictment  was  for  arson, 
and  "  there  was  evidence  tending?  to  show  a  fresh  track  in  the 
lane  leading  from  the  road  to  the  house;  [and]  that  this  track 
and  the  track  of  the  defendant  corresponded,"  it  was  said : 
"  The  previous  threats  of  the  defendant,  and  his  declarations 
in  the  nature  of  threats,  were,  on  the  same  principle,  properly 
admitted.  While  they  are  not  of  themselves  convincing  of 
ffuilt,  from  them,  in  connection  with  the  other  circnmstances, 
if  believed  by  the  jury,  guilt  may  be  a  logical  sequence." 
Whart.  Cr.  Ev.  (8th  Ed.),  §  756. 

As  to  the  defense  of  an  alibi,  the  burden  of  making  it  out 
was  upon  the  plaintiff  in  error  {Ackerson  v.  People,  124  111. 
563);  and,  in  order  to  maintain  it,  he  was  bound  to  establish 
in  its  support  such  facts  and  circumstances  Jis  were  sulficient, 
when  considered  in  connection  with  all  the  other  evidence 
in  the  case,  to  create  in  the  minds  of  the  jury  a  reasonable 
doubt  of  the  truth  of  the  charge  against  him.  Garrity  v. 
PeopUj  107  111.  162;  MttlUm  v.  People.  110  111.  42.  It  can 
not  be  said  that  the  defense  was  made  out  so  clearly  and 
satisfactorily  as  to  be  availing  against  the  case  made  by  the 

state. 

It  is  assigned  as  error  that  the  court  refused  to  permit  the 
defendant  to  prove  by  two  witnesses  that  they  had  heard 
Thomas  Verhines  make  threats  that  he  would  burn  up  every- 
thing Kidenhour  had.  We  do  not  regard  this  ruling  as  erro- 
neous. Threats  of  a  third  person,  other  than  the  prisoner  on 
trial,  against  the  victim  of  the  crime  charged,  are  mere  hear- 
say, and  are  inadmissible.  Evidence  of  this  character  tends 
to  draw  away  the  minds  of  the  jury  from  the  point  in  issue, 
which  is  the  guilt  or  innocence  of  the  prisoner,  and  to  excite 
their  prejudices  and  mislead  them.  1  Greenl.  Ev.,  §§  51,  52; 
Walker  v.  State,  6  Tex.  App.  576;  State  v.  Duncan,  6  Ired.  236. 
Such  threats  of  a  third  person  are  inter  alios  acta;  they  are 
too  remote  from  the  inquiry  before  the  jury  to  be  received, 
and  have  no  legal  tendency  to  establish  the  innocence  of  the 
prisoner.  Alston  v.  State,  63  Ala.  178;  State  v.  Davis,  77  N. 
C.  483.  It  is  competent  for  the  defendant  to  show  by  any 
legal  evidence  that  another  committed  the  crime  with  which 
he  is  charged,  and  that  he  is  innocent  of  any  participation  in 
it,  but  this  can  not  be  shown  by  the  admissions  or  confessions 
of  a  third  person  not  under  oath,  which  are  only  hearsay. 


CARLTON  V.  PEOPLE. 


67 


The  proof  must  connect  such  third  person  with  the  fact — that 
is,  with  the  perpetration  of  some  deed  entering  into  the  crime 
itself.  There  must  be  proof  of  such  a  train  of  facts  and  cir- 
cumstances as  tend  clearly  to  point  to  him,  rather  than  to  the 
])risoner,  as  the  guilty  party.  "  Extrajudicial  statements  of 
third  persons  can  not  be  proved  by  hearsay,  unless  such  state- 
ments were  part  of  the  res  gest(^P  Whart.  Cr.  Ev.  (8th  Ed.), 
$>  225;  Smith  v.  State,  9  Ala.  990;  State  v.  Davis,  supra;  Green- 
fidd  V.  People,  85  N.  Y.  75;  Thomas  v.  People,  67  lb.  218; 
Owenshy  v.  State,  82  Ala.  03;  State  v.  Ilaynes,  71 N.  C.  79;  Phea 
V.  State,  10  Yerg.  258;  Com.  v.  Chabhock,  1  Mass.  143;  State  v. 
Johnson,  30  La.  Ann.  921;  People  v.  Murphy,  45  Cal.  137;  State 
V.  Smith,  35  Kan.  618;  State  v.  May,  4  Dev.  328;  Wright  v. 
State,  9  Yerg.  342. 

It  is  assigned  as  error  that  the  court  instructed  the  jury 
that  "  the  reasonable  doubt  the  jury  are  permitted  to  entertain 
must  be  as  to  the  guilt  of  the  accused  on  the  whole  of  the  evi- 
dence, and  not  as  to  any  particular  fact  in  the  case."  We  do 
not  regard  the  doctrine  of  the  instruction  as  erroneous.  It  is 
in  accordance  with  the  rule  which  we  have  laid  down  in  a 
number  of  cases.  Mullins  v.  People,  supra;  Davis  v.  People, 
114  111.  86;  Leiyh  v.  People,  113  lb.  372;  Bressler  v.  People,  117 
111.422;  Ilogev,  People,  117  111.  35.  There  was  no  error  in 
refusing  the  defendant's  third  refused  instruction,  because 
instructions  given  for  the  state  and  for  the  accused  required 
the  jury  to  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  willfully  and  maliciously  burned 
the  barn  of  Ridenhour. 

Complaint  is  made  that  the  court  refused  to  instruct  the 
jury  as  follows :  "  If  the  jury  entertain  any  reasonable  doubt 
as  to  whether  or  not  the  defendant  was  at  his  own  home  or  at 
the  scene  of  the  alleged  offense  at  the  time  such  offense  was 
committed,  then  it  is  your  duty,  under  the  law,  to  acquit  him." 
Such  an  instruction  was  held  to  be  incorrect  in  MuUins  v.  Peo- 
pU,  supra.  The  reasonable  doubt  of  guilt  which  will  acquit  the 
prisoner  when  his  defense  is  an  alibi  is  the  doubt  which  arises 
from  a  consideration  by  the  jury  of  all  the  evidence,  "as  well 
that  touching  the  question  of  the  alibi  as  the  criminating  evi- 
dence introduced  by  the  prosecution."  Mnllins  v.  People, 
supra.  In  the  case  at  bar,  fourteen  instructions  were  given 
for  the  state  and  eighteen  for  the  defendant.    The  jury  was 


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AMERICAN  CRIMINAL  REPORTS. 


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instructed  in  regard  to  the  subject  of  reasonable  doubt  in 
accordance  witlUhe  principles  laid  down  by  this  court  in  Mif- 
ler  V.  People,  39  111.  457;  Jfay  v.  Peojde,  60  lb.  119;  Connaghan 
V.  Peojyle,  %^  lb.  460;  S}>ie8  v.  People,  122  lb.  1.  We  see 
no  reason  for  departing  from  the  views  expressed  in  these 


cases. 


Counsel  for  plaintiff  in  error  claim  that  the  trial  court  erred 
in  refusing  to  give  their  refused  instruction  No.  17,  which  is 
as  follows :  "  The  jury  are  instructed,  as  a  matter  of  law,  that, 
when  a  conviction  for  a  criminal  offense  is  sought  on  circum- 
stantial evidence  alone,  the  people  must  not  only  show,  by  a 
preponderance  of  evidence  that  the  alleged  facts  and  circum- 
stances are  true,  but  they  must  be  such  facts  and  circumstances 
as  are  absolutely  inconsistent,  upon  a/iy  reasonable  hypothesis, 
with  the  innocence  of  the  accused,  and  incapable  of  explana- 
tion upon  any  other  theory  than  that  of  the  guilt  of  the  ac- 
cused; and  in  this  case,  if  all  the  facts  and  circumstances  relied 
on  by  the  people  to  secure  a  conviction  can  be  reasonably 
accounted  for  upon  any  theory  consistent  with  the  innocence 
of  the  defendant,  they  should  acquit  him."  In  instruction 
No.  13  given  for  the  people,  the  court  told  the  jury  that  "  cir- 
cumstantial evidence  should  be  of  such  a  character  as  to  ex- 
clude every  reasonable  hypothesis  other  than  that  the  defend- 
ant is  guilty."  In  instruction  No.  1,  given  for  the  defendant, 
the  court  instructed  the  jury  that  "  the  defendant  is  presumed 
to  be  innocent  until  the  contrary  appeared  by  the  evidence, 
and  such  evidence  must  be  so  strong  and  convincing  as  to 
remove  every  reasonable  doubt  of  his  guilt,  to  the  exclusion  of 
every  reasonable  hypothesis  of  his  innocence."  Irrespective 
of  the  question  whether  refused  instruction  No.  17  was  right 
or  wrong,  the  defendant  could  not  have  been  injured  by  its 
refusal,  in  view  of  the  giving  of  plaintiff's  instruction  No.  13, 
and  defendant's  instruction  No.  1,  as  above  quoted,  whether 
the  two  last  named  instructions  were  correct  or  not.  A  de- 
fenJ.ant  can  not  complain  of  the  refusal  of  an  instruction  if  its 
substance  is  embodied  in  instructions  which  are  given,  and,  in 
so  holding,  this  court  does  not  necessarily  hold  such  given 
instructions  to  be  correct.  In  addition,  however,  to  this  con- 
sideration, said  instruction  No.  17  was  properly  refused,  be- 
cause it  is  so  broad  and  sweeping  in  its  terms  that,  if  it  were 
given  in  every  criminal  case  dependent  upon  circumstantial 


CARLTON  V.  PEOPLE. 


69 


evidence,  it  would  have  a  tendency  to  prevent,  in  many  in- 
stances, the  conviction  of  guilty  parties.  Gannon  v.  People^ 
127  111.  507;  Whart.  Cr.  Ev.  (8th  Ed.),  §  10.  "What  cir- 
cumstances amount  to  proof  can  never  be  matter  of  general 
definition.  The  legal  test  is  the  sufficiency  of  the  evidence 
to  satisfy  the  understanding  and  conscience  of  the  jury. 
On  the  one  hand,  absolute  metaphysical  and  demonstrative 
certainty  is  not  essential  to  proof  by  circumstances.  It  is  suf- 
ficient if  they  produce  moral  certainty,  to  the  exclusion  of 
every  reasonable  doubt."  1  Starkie  Ev.,  §  79;  Otmer  v.  People^ 
76  111.  149.  The  circumstances  must  be  such  as  to  produce  a 
moral  certainty  of  guilt,  and  to  exclude  any  other  reasonable 
hypothesis.  Com.  v.  Goodwin,  14  Grjiy  55;  1  Greenl  Ev.,  §  13a. 
The  jury  should  be  satisfied  of  the  defendant's  guilt  beyond 
a  reasonable  doubt,  and  if  there  be  no  probable  hypothesis  of 
guilt  consistent,  beyond  reasonable  doubt,  with  the  facts  of 
the  case,  the  defendant  must  be  acquitted.  Com.  v.  Costley,  118 
Mass.  1;  Whart.  Cr.  Ev.  (8th  Ed.),  §  21.  In  order  to  warrant  a 
conviction  of  crime  on  circumstantial  evidence,  the  circum- 
stances, taiien  together,  should  be  of  a  conclusive  nature  and 
tendency,  leading,  on  the  whole,  to  a  satisfactory  conclusion, 
and  producing,  in  effect,  a  reasonable  and  moral  certainty  that 
the  accused,  and  no  one  else,  committed  the  offense  charged. 
Com.  V.  Goodwin,  supra.  It  is  difficult  to  define  accurately 
what  is  a  reasonable  doubt,  but  all  the  authorities  agree  that 
such  a  doubt  must  be  actual  and  substantial,  as  contradistin- 
guished from  a  mere  vague  apprehension,  and  must  arise  out 
of  the  evidence  introduced.  3  Greenl.  Ev.  (15th  Ed.),  §  29, 
note  a;  Earl  v.  People,  73  111.  329.  The  jury  may  be  said  to 
entertain  a  reasonable  doubt  when,  after  the  entire  comparison 
and  consideration  of  all  the  evidence,  they  can  not  saj'^  that 
they  feel  an  abiding  conviction  to  a  moral  certainty,  of  the 
truth  of  the  charge.  Com.  v.  Webster,  5  Cush.  320.  Proof  "  be- 
yond a  reasonable  doubt "  is  such  proof  as  precludes  every 
hypothesis  except  that  which  it  tends  to  support.  It  is  proof 
"  to  a  moral  certainty,"  as  distinguished  from  an  absolute  cer- 
tainty. The  two  phrases — "  proof  beyond  a  reasonable  doubt," 
and  "  proof  to  a  moral  certainty  " — are  synonymous  and  equiv- 
alent. "  Each  signifies  such  proof  as  satisfies  the  judgment 
and  conscience  of  the  jury  as  reasonable  men,  and  applying 
their  reason  to  the  evidence  before  them,  that  the  crime 


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70 


AMERICAN  CRIMINAL  REPORTS. 


charo-ed  has  been  committed  by  the  defendant,  and  so  satisfied 
them  as  to  leave  no  other  reasonable  conclusion  possible." 
Com.  V.  Costley,  supra.  The  judgment  of  the  Circuit  Court  is 
affirmed.    Affirmed. 


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yiOTF,.—Jiuming  Vacant  House, — A  vacant  house  is  not  witiiin  How. 
St.,  §  ttl33,  providing  for  the  punishment  of  one  who  shall  willfully  and 
maliciously  burn,  in  the  night  time,  the  "  dwelling  house  "  of  another.  Tlie 
crime  of  burning  a  dwelling  house  is  a  crime  against  the  habitation  and 
not  against  the  fee  title.    People  v.  Handley,  93  Mich.  46. 

'Sot^.— Indictment  — Occiipaitcy  of  House  — Ownership. —In  State  v. 
Kenna,  63  Conn.  329,  the  court  held  that  an  information  which  fails  to 
state  the  name  of  the  occupant  of  the  house,  or  any  other  facts  showing  its 
occupancy  by  another  than  defendant,  is  radically  defective,  and  not  cura- 
ble by  verdict. 

The  essential  ingredients  of  the  crime  pf  arson  are,  the  voluntary  and 
malicious  burning  of  an  occupied  dwelling  house,  and  that  the  house  be  the 
house  of  another  than  the  accused.  2  Swift,  Dig.,  side  p.  304;  3  Co.  Inst.  66. 
From  these  elements  it  appears  that  arson  is  an  offense  against  the  security 
of  a  dwelling  house  as  such,  and  noi  against  the  building  as  property.  It 
has  regard  to  the  occupation  instead  of  the  ownership;  or  rather,  in  the 
contemplation  of  this  offense,  the  occupier  is  the  owner.  State  v.  Toole,  29 
Conn.  342;  State  v.  McGowan,  20  Conn.  245,  246;  Snyder  v.  People,  26  Mich. 
106.  And  so  essential  is  it  to  the  idea  of  arson  that  the  house  burned  be 
the  house  of  another,  that  one  does  not  commit  this  crime  by  burning  the 
house  occupied  by  himself.  State  v.  Lyon,  18  Conn.  487;  State  v.  Fish,  27 
N.  J.  Law  323;  Breeme's  Ca.se,  2  East,  P.  C.  1026;  Sullivan  v.  State,  5  Stew. 
&  P.  f''}',  Blosa  V.  Tdbey,  2  Pick.  320,  325. 

What  Constitutes. — One  who,  to  effect  his  escape,  sets  fire  to  the  building 
in  which  he  is  imprisoned,  commits  arson.  Willis  v.  State,  32  Tex.  Cr.  R. 
534.  One  who,  with  a  view  of  burning  a  dwellinp  sets  fire  to  a  school 
J'ouse  adjoining,  and  thereby  the  dwelling  is  burnt  j  guilty  of  burning 
the  dwelling.    Combs  v.  Cam.,  98  Ky.  813. 


li    i 


People  v.  Burridgb. 


(99  Mich.  343.) 
Arson:   Evidence— Sentence. 

1.  Evidence  that  the  house  burned  was  on  defendant's  land,  which  he  was 

unable  to  sell  owmg  to  occupant's  refusal  to  leave;  that  defendant  had 
threatened  to  bum  the  house,  and  was  seen  leaving  it  with  an  empty 
oil  can,  a  few  mmutes  before  the  fire  was  discovered,  was  sufficient  to 
sustain  a  conviction. 

2.  Though  a  sentence  of  nine  months'  imprisonment  for  arson  is  irregular 


PEOPLE  V.  BURRIDGE. 


71 


if 
I 


— now  St.,  §  0134,  providing  that  the  offense  shall  be  punislmble  by 
imprisonment  for  "any  term  of  years,"  such  irregularity,  being  in 
defendant's  favor,  can  not  be  taken  advantage  of  by  him. 

Error  in  the  Circuit  Court,  Berrien  county,  Thomas  O'Hara, 
Judge. 

Jacob  Burridge  was  convicted  of  arson,  and  brings  error, 
vffirraed. 

Zmorence  C.  Fyfe  and  George  TF.  Bridgman,  for  appellant. 
N.  A.  Ilamiltony  prosecuting  attorney,  for  the  People. 

Long,  J.  Eespondent  was  informed  against  under  section 
9124,  How.  St.,  for  burning  the  dwelling  house  of  one  William 
Duvall  in  the  daytime.  Duvall  lived  by  himself  in  a  house 
situated  on  land  owned  by  defendant.  Just  what  the  arrange- 
ment was  by  which  Duvall  claimed  to  have  the  right  to  occupy 
it,  does  not  appear,  but  it  does  appear  that  the  defendant  was 
unable  to  sell  the  land  so  long  as  Duvall  remained  there. 
Some  two  years  before  the  fire,  as  was  testified  on  the  trial  by 
one  of  the  people's  witnesses,  respondent  stated  that  he 
wanted  to  get  Duvall  oif ,  so  he  could  sell,  and  that  if  he  did  not 
get  off  he  would  burn  him  off.  The  fire  occurred  in  the  day- 
time, about  noon.  Defendant  was  seen  going  toward  the 
house  with  a  can  partly  filled  with  kerosene  oil,  and  coming 
back  from  there  Vt^ith  the  can  empty.  A  few  minutes  after, 
flames  were  seen.  No  one  was  in  the  house  at  the  time.  The 
contention  is : 

1.  That  there  was  no  evidence  to  go  to  the  jury  which  would 
authorize  a  conviction. 

We  think  there  was  some  evidence  from  which  the  jury 
might  properly  find  the  respondent  guilty  of  the  crime 
charged. 

2.  That  the  sentence  imposed  was  not  authorized  by  law. 
The  respondent  was  sentenced  to  state  prison  at  Jackson 

for  the  period  of  nine  months,  under  section  9124,  Avhich  pro- 
vides that  the  offense  "  shall  be  punished  by  imprisonment  in 
the  state  prison  for  life  or  for  any  term  of  years."  Counsel 
claims  that  imprisonment  for  nine  months  is  not  for  "  any  term 
of  years,"  and  that,  therefore,  the  sentence  is  void,  and  the 
respondent  must  be  discharged.  It  was  said  in  Re  Lamphere, 
61  Mich.  108,  that :    "  There  is  no  crime  whatever,  punishable 


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72 


AMERICAN  CRIMINAL  REPORTS. 


I     • 


by  our  laws  except  by  virtue  of  a  statutory  provision.  The  pun- 
ishment of  all  undelinetl  offenses  is  fixed  within  named  limits, 
and  beyond  the  unregulated  discretion  of  the  courts."  The 
legislature  has  fixed  the  maximum  and  minimum  punishment. 
The  maximum  is  for  life,  and  the  minimum  for  a  term  not  less 
than  two  years,  as  "any  term  of  years"  must  be  construed 
for  a  time  not  less  than  two  years.  The  Supreme  Court  of 
Massachusetts,  Ee  parte  Seymour,  14  Pick.  43,  in  construing  a 
similar  statute,  say :  "  We  think  the  natural  and  legal,  as  well 
as  the  literal  and  grammatict^l  construction  of  the  words  '  any 
term  of  years,'  must  be  a  period  of  time  not  less  than  two 
years."  This  construction  was  again  given  to  these  words  in 
Ex  parte  DivTc,  14  Pick.  86,  and  Ex  parte  White,  Id.  93.  It  was 
said  in  Elliott  v.  People,  13  Mich.-  365.  that  where  the  sentence 
imposed  by  the  court  upon  a  prisoner  is  an  excess  of  authority, 
and  therefore  unlawful,  the  court  can  not  substitute  for  such 
sentence  a  lawful  one;  and  if  there  is  no  error,  except  in  the 
judgment,  there  can  be  no  new  trial,  nor  can  the  court  below  give 
a  second  judgment.  Hence,  the  prisoner  must  be  discharged. 
In  O^JVeil  v.  People,  15  Mich.  275,  the  same  rule  was  stated,  and 
the  prisoner  was  discharged.  Since  these  cases  were  decided, 
the  legislature,  by  Act  No.  170,  Laws  1867  (How.  St.,  §  9164), 
has  provided  that  the  sentence  shall  be  void  only  for  the  ex- 
cess. But  the  error  here  complained  of  is  in  respondent's 
favor.  The  statute  under  which  the  sentence  was  passed 
authorizes  imprisonment  in  the  state  prison  at  Jackson.  This 
is  the  place  where  he  is  to  be  confined,  according  to  the 
sentence  passed,  and  the  only  error  is  in  making  the  terra 
of  imprisonment  shorter  by  fifteen  months  than  the  minimum 
fixed  by  the  statute.  Under  the  decisions  of  the  English  courts 
and  some  of  our  sister  states,  it  is  held  that  this  is  not  onlv  an 
erroneous  sentence,  but  that  the  respondent  may  take  ad- 
vantage of  the  error,  and  be  discharged  altogether  from  cus- 
tody. Whitehead  v.  Beg.,  7  Q.  B.  582;  Bourne  v.  Rex,  7  Adol. 
&  E.  58;  Rioe  v.  Com.,  12  Mete.  (Mass.)  246;  Taf  v.  State, 
39  Conn.  82.  But  in  other  of  the  states  it  is  hold  that  error 
such  as  this,  in  respondent's  favor,  can  not  be  taken  advan- 
tage of  by  writ  of  error.  In  WattingJmm.  v.  State,  5  Sneed, 
64,  the  respondent  was  convicted  of  larceny  and  sentenced 
to  two  years'  imprisonment.  The  minimum  fixed  by  the 
statute  was  three  years.    The  court  held  the  rule  that  a  party 


STATE  V.  WHITE  ET  AL. 


can  not  assign  for  error  that  which  is  for  his  own  advantage 
applies  as  well  to  criminal  cases  as  to  civil  proceedings;  that 
the  error  was  formal,  merely,  and  could  not  avail  the  prisoner. 
In  People  v.  Bauer,  37  Hun  407,  the  respondent  was  sentenced 
to  imprisonment  for  three  months,  and  the  minimum  of  the 
statute  was  one  year.  It  was  held  that  the  sentence  was  irreg- 
ular, but  that  the  respondent  could  not  assign  it  as  error,  as  it 
was  beneficial  to  him.  In  Iloshins  v.  State,  27  Ind.  470,  defend- 
ant moved  for  his  discharge  on  the  ground  that  the  sentence 
was  less  than  that  fixed  by  the  statute,  and  it  was  held  that  he 
was  not  entitled  to  a  discharge.  See  also  Baradav.  State,  13 
Mo.  94;  Octon  v.  State,  5  Ala.  463;  Com.  v.  Shanks,  10  B.  Mon. 
304;  Jones  V.  State,  13  Ala.  153;  Gamphellv.  State,  16  Ala.  144. 
All  courts  concede  that  whore  the  error  is  prejudicial  to  the 
respondent,  in  a  criminal  case,  it  will  be  corrected  on  error; 
but  where  the  error  is  in  favor  of  the  respondent,  as  when 
a  sentence  is  for  a  shorter  period  of  time  than  the  statute 
imposes,  we  think  the  more  reasonable  rule  to  be  that  the 
respondent  shall  not  be  permitted  to  take  advantage  of  the 
irregularity  on  error.  Judgment  affirmed.  The  other  justices 
concurred. 


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State  v.  White  et  al. 

(18  R.  I.  473.) 
Assattlt:  Removal  of  public  nuisance — Self-defense. 

1.  On  trial  on  indictment  for  assault  with  intent  to  kill,  it  appeared  that  A. 

maintained  a  gate  across  a  highway  leading  to  a  beach  where  defend- 
ant W.  had  a  seaweed  privilege,  and  tried  to  prevent  defendants,  who 
came  there  with  the  intention  of  forcing  the  gate  in  case  of  resistance, 
from  going  through  on  their  way  to  the  beach,  whereupon  defendants 
forced  the  gate,  causing  a  fight,  resulting  in  the  injuries  to  A.,  for 
assaulting  whom  defendants  were  indicted.  Held  that  although  A.  was 
maintainingapublic  nuisance,  which  was  a  source  of  special  injury  to 
W.,  defendants  were  not  justified  in  using  violence  to  overcome  his  re- 
sistance. 

2.  Where  defendants  brought  on  the  difficulty  themselves,  they  can  not 

plead  self-defense. 


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iirt.iti»s»a»sw  .rwtnTtaaoaicmr.-- 


74 


AMERICAN  CRIMINAL  REPORTS. 


Prosecution  against  Isaac  White  and  Emerson  Ash.  Defend- 
ants were  convicted,  and  petition  for  a  new  trial.  Petition 
denied. 

Willard  B.  Tanner,  Assistant  Attorney-General,  for  the  State. 
Arnold  Green,  for  defendants. 

Tilling  HAST,  J.  This  is  an  indictment  against  the  defend- 
ants, charging  an  assault  on  one  Samuel  E.  Almy  with  intent 
to  kill  and  murder.  At  the  -trial  of  the  case  in  the  court  of 
common  pleas  the  defendants  were  found  guilty  of  an  assault 
with  a  dangerous  weapon,  and  they  now  petition  for  a  new 
trial  on  the  ground  that  the  verdict  is  against  the  evidence, 
and  that  the  presiding  justice  erfed  in  his  rulings  of  law  and 
in  his  instructions  to  the  jury. 

The  facts  in  the  case,  as  shown  by  the  stenographer's  report 
thereof,  are  substantially  these :  The  defendant,  Isaac  White, 
had  a  seaweed  privilege  on  Fogland  beach,  in  the  town  of  Tiv- 
erton, which  he  had  habitually  exercised,  and  which  was  known 
to  said  Almy.  On  the  day  of  the  happening  of  the  alleged 
assault.  White  sent  his  hired  man.  Ash,  one  of  the  defendants, 
together  with  a  boy  named  Sweet,  with  a  team  to  get  seaweed 
from  said  beach.  There  was,  and  for  upward  of  a  century 
had  been,  a  public  highway  leading  to  the  beach,  as  was  subse- 
quently decided  by  this  court  in  Almy  v.  Church,  Index  LL. 
170;  but  at  the  point  where  the  affray  occurred  it  was,  and 
from  time  immemorial  had  been,  obstructed  by  a  gate  wrong- 
fully maintained  by  said  Almy  and  his  predecessors  in  title  to 
the  farm  then  owned  by  him,  and  the  case  referred  to  was  then 
pending  in  this  court  to  determine  as  to  the  right  of  the  town 
council  of  Tiverton  to  open  and  define  said  highway  from  the 
gate  westward  to  the  beach.  On  the  arrival  of  said  Ash  and 
Sweet  at  the  gate  on  their  way  to  the  beach,  the  complainant, 
who,  having  seen  them  approaching,  had  left  his  work  in  the 
fiield  and  gone  to  said  gate  for  the  purpose  of  preventing  them 
from  going  through  the  same,  forbade  them  from  opening  the 
gate,  telling  Ash  that  if  he  went  through  the  gate  he  (Almy) 
would  go  through  his  blood;  Almy  at  the  same  time  stepping 
back  and  procuring  two  sticks  from  the  corner  of  the  wall, 
and  giving  one  of  them  to  Hussey,  his  hired  man,  and  telling 
him  to  use  it  if  necessary.    After  some  talk  between  Ash  and 


STATE  V.  WHITE  ET  AL. 


75 


Almy  as  to  the  right  of  the  former  to  go  through  said  gate, 
and  after  being  forbidden  as  aforesaid,  Ash  [said  to  the  boy, 
Sweet,  "  We  can't  get  any  thing  here  now.  We  might  as  well 
go  and  tell  the  old  man  (as  he  called  him,  referring  to  White), 
and  if  he  wants  to  go  through  to  come  down."  Whereupon 
tlie  young  man  started  on  his  errand,  and  Ash  turned  his  team 
around  and  drove  away  to  a  neighbor's  house  near  by.  After 
an  hour  or  so  had  elapsed,  Ash,  who  in  the  meantime  had 
armed  himself  with  a  pistol,  returned  to  the  gate  with  his 
team.  White  then  being  with  him;  whereupon  Ash  said,  "  Will 
you  open  that  gate  now  ? "  and  Almy  replied,  "  No,  I  will  pre- 
vent your  entering  for  any  purpose  whatever."  Ash  said, ''  We 
have  got  the  tools  to  do  it  with,  and  we  are  going  through;" 
whereupon  the  defendants,  after  some  delay  and  parleying, 
during  which  violent,  profane  and  threatening  language  was 
used  by  the  defendants  toward  Almy,  and  after  a  request  by 
White  to  Almy  to  open  the  gate,  which  was  again  refused, 
Almy  saying  to  White  that  if  he  did  open  it  he  would  have  to 
go  over  his  (Almy's)  dead  body,  Almy  and  Ilussey  having  the 
sticks  in  their  hands.  White  and  Ash  turned  their  ox  team 
around  and  backed  it  violently  against  the  gate  several  times  for 
tiie  purpose  of  breaking  it  down  and  thereby  obtaining  access  to 
the  beach.  While  the  defendants  were  thus  engaged,  Almy, 
together  with  said  Hussey,  persistently  and  violently  strove  to 
prevent  the  team  from  going  through,  by  holding  the  gate,  by 
punching  and  belaboring  the  oxen  with  the  stick,  and  also  by 
inserting  the  stick  in  the  wheels  of  the  cart.  The  defendants, 
however,  finally  succeeded  in  breaking  through  the  gate. 
Whether  or  not  any  direct  personal  violence  was  used  by  either 
party  before  the  gate  was  actually  forced  open  is  not  entirely 
clear  from  the  evidence,  but  either  during  the  breaking  thereof, 
or  immediately  afterward,  there  was  a  violent  personal  en- 
counter between  Almy  and  the  defendants,  growing  out  of  the 
transaction,  during  which  the  defendants  used  a  hoe,  pitchfork 
and  pistol,  breaking  the  arm  of  Almy  and  otherwise  injuring 
him  to  the  extent  of  disabling  him  from  offering  further  re- 
sistance to  their  attempts  to  go  through  the  gate  with  their 
team,  whereupon  they  proceeded  to  the  beach  for  the  purpose 
aforesaid.  The  defendants  testify  that  White  was  knocked 
down  and  rendered  insensible  by  Almy  during  the  affray,  and 
also  that  Ash  was  beaten  by  him  with  a  stick  or  club.    Briefly 


s 

V  « 


^    'H 


76 


AMERICAN  CRIMINAL  REPORTS. 


M'i 


'j: 


summarized,  then,  the  evidence  submitted  shows  that  the  de- 
fendants were  lawfully  on  a  public  highway,  going  to  the  beach 
to  collect  White's  property,  the  seaweed  which  was  there; 
that  said  Almy  had  illegally  obstructed  the  highway  by  main- 
taining the  gate  across  the  same,  which  was  a  public  nuisance, 
and  which  specially  damnified  the  defendant  White;  that  Almy 
refused  to  allow  the  gate  to  bo  opened,  and  aggressively  de- 
fended the  same  by  holding  it  to  prevent  it  from  Iwing  opened, 
and  attacking  the  vehicle  and  the  oxen  of  the  defendants,  while 
the  latter  were  striving  to  force  their  way  through;  and  that 
during,  or  immediately  after  the  removal  of  said  obstruction 
in  the  manner  aforesaid,  a  personal  encounter  ensued  between 
the  defendants  and  Almy,  in  which  the  latter  received  the 
injuries  complained  of,  and  also  in  which,  according  to  defend- 
ants' testimony.  White  was  knocked  down  and  rendered  insen- 
sible by  Almy,  and  Ash  was  also  beaten  by  him  Avith  a  stick. 
The  first  question  which  arises  in  view  of  this  state  of  facts 
is  whether  the  presiding  justice  erred  in  his  refusal  to  instruct 
the  jury  asreqiested  by  the  defendants' counsel :  (I)  "That 
if  the  jury  finds  that  the  defendants  and  their  cart  were  on 
this  highway  intending  to  take  the  most  direct  track  to  the 
beach  and  salt  water  for  their  seaweed,  and  that  Almv  inter- 
rupted  them,  Almy,  and  not  they,  Avas  the  aggressor; "  (2) 
"  That  if  the  jury  find  that  these  parties  were  attacked  while 
upon  a  public  highway  of  the  state,  Almy,  and  not  they,  was 
the  aggressor."  The  answer  to  this  question  depends  upon  the 
correctness  of  the  defendants'  contention  as  to  their  legal  right 
to  remove  said  obstruction  by  force  while  the  complainant 
was  present  and  actively  defending  the  same.  If  they  had 
this  right,  then  Almy,  and  not  they,  was  the  aggressor,  and 
said  request  to  charge  should  have  been  granted;  otherwise 
not.  We  think  it  is  Avell  settled,  notwithstanding  some  de- 
cisions and  dicta  to  the  contrary,  that  a  private  person  may 
not,  of  his  own  motion,  abate  a  strictly  public  nuisance. 
Dimes  v.  PeUey,  15  Q.  B.  276;  Brown  v.  Perkins,  12  Gray,  89; 
Griffith  V.  IfeCvllum,  46  Barb.  561;  Wood,  Nuis.,  §§  729-737,  and 
cases  cited;  Boioden  v.  Lewis,  13  R.  I.  180.  It  is  also  equally 
well  settled  that  a  private  person  may,  of  his  own  motion, 
abate  a  public  nuisance  where  the  existence  thereof-  is  a  source 
of  special  injury  to  him,  provided  he  can  do  so  without  a  breach 
of  the  peace.    3  Bl.  Coram.  5;  16  Am.  &  Eng.  Eno.  Law,  990- 


STATE  V.  WHITE  ET  AL. 


<  i 


0!)4.  and  cases  citotl;  State  v.  Iieemn,  5  R.  I.  497,  510;  Clark  v. 
Ice  Co.,  24  Mich.  50S;  Mayor  of  Cok'henter  v.  Brooke,  7  Q.  B.  330; 
ftnnii  V.  Shoneherger,  2  Watts,  23;  4  Wait,  Act.  &  Def.,  778, 
and  ( iisos  cited;  Day  v.  Day,  4  Md.  2G2,  270;  State  v.  Flanna- 
(/an,  iu  Ind.  140.  In  Cooley  on  Torts  (2d  Ed.,  pp.  48,  49),  the 
luu'  is  well  stated  as  follows :  "  The  question  who  may  abate 
a  nuisance  may  depend  upon  whether  the  nuisance  is  public  or 
private.  If  it  is  a  private  nuisance,  he  only  can  abate  it  Avho 
is  injured  by  its  continuance;  if  it  is  a  public  nuisance,  lie  only 
may  abate  it  who  suffers  a  8i)ecial  grievance,  not  felt  by  the 
public  in  general.  Therefore,  if  one  places  an  obstruction  in 
a  public  street,  an  individual  who  is  incommotltd  by  it  may 
remove  it;  but  unless  he  has  occasion  to  make  use  of  tho  high- 
wtiv  be  must  leave  the  public  injury  to  be  redressed  by  the 
public  authorities.  It  is  the  e.\istence  of  an  emergency  which 
justilies  the  interference  of  the  individual.  In  permitting  this 
redress,  certain  restrictions  are  imposed  to  prevent  abuse  or  un- 
necessary injury.  One  of  these  is  that  the  right  must  not  be 
exercised  to  the  prejudice  of  the  public  peace.  Therefore,  if 
the  abatement  is  resisted,  it  becomes  necessary  to  seek  in  the 
courts  the  ordinary  legal  remedies."  This  being  the  law,  the 
question  which  naturally  arises  is,  did  the  defendants  commit 
a  breach  of  the  peace  in  the  abatement  of  the  nuisance  in  ques- 
tion 'i  We  think  they  did.  Any  violation  of  the  public  order 
or  decorum  is  a  breach  of  the  peace.  Galvin  v.  State,  6  VoXd. 
2S3.  The  term  is  generic,  and  includes  unlawful  assemblies, 
riots,  alfrays,  provoking  a  fight,  and  other  acts  of  a  similar 
character.  The  use  of  grossly  indecent,  profane  and  abusive 
language  toward  another  person  upon  the  public  street  or  high- 
way, in  the  presence  of  others,  is  a  breach  of  the  peace.  In 
Davis  V.  Burgess,  54  Mich.  514,  the  court  said :  "Now,  what  is 
understood  by  a  '  breach  of  the  peace  ? '  By  '  peace,'  as  used 
in  the  law  in  this  connection,  is  meant  the  tranquillity  enjoyed 
by  the  citizens  of  a  municipality  or  community  where  good 
order  reigns  among  its  members.  It  is  the  natural  right  of  all 
l^ersons  in  political  society,  and  any  intentional  violation  of 
that  right  is  '  a  breach  of  the  peact;.'  It  is  the  offense  of  dis- 
turbing the  public  peace,  or  a  violation  of  public  order  or  pub- 
lic decorum.  Actual  personal  violence  is  not  an  essential  ele- 
ment in  the  offense.  If  it  were,  communities  might  be  kept  in 
a  constant  state  of  turmoil,  fear  and  anticipated  danger  from 


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78 


AMERICAN  CRIMINAL  REPORTS. 


the  wicked  language  and  conduct  of  a  guilty  party,  not  only 
destructive  of  the  peace  of  the  citizens,  but  of  public  morals, 
without  the  commission  of  the  offense.  The  good  sense  and 
morality  of  the  law  forbid  such  a  construction."  "  Besides 
actual  breaches  of  the  peace,"  says  Blackstone  (4  Bl.  Coram. 
150),  "anything  that  tends  to  provoke  or  excite  others  to 
break  it,  is  an  offense  of  the  same  denomination."  It  has  been 
held  that  driving  a  carriage  through  a  crowded  or  populous 
street  at  such  a  rate  or  in  such  a  manner  as  to  endanger  the 
safety  of  the  inhabitants,  is  an  indictable  offense  at  common 
law,  and  amounts  to  a  breach  of  the  peace.  U.  S.  v.  JIart,  3 
Wheeler,  Cr.  Cas.  304;  see  also.  Com.  v.  Foley,  99  Mass.  497; 
1  Bish.  Cr.  Law  (2d  Ed.),  §  400,  and  cases  cited;  Crosland  v. 
Shaw  (Pa.  Sup.),  12  Atl.  849;  Taaffe  v.  Kyne,  9  Mo.  App.  15. 
These  authorities  are  sufficient  to  define  and  illustrate  what 
constitutes  a  breach  of  the  peace,  and  to  show  that  tlie  defend- 
ants were  clearly  guilty  of  the  commission  thereof  in  attempt- 
ing to  abate  the  nuisance  in  the  manner  aforesaid.  They  went 
with  the  evident  intention  of  breaking  open  the  gate  by  over- 
coming whatever  force  Almy  might  oppose  to  them.  They 
were  armed  with  a  pitchfork,  a  hoe  and  a  pistol.  They  used 
violent  and  profane  language  in  a  public  highway,  in  the  pres- 
ence of  at  least  six  persons.  They  backed  their  team  against 
the  gate  while  Almy  and  Ilussey  were  on  the  opposite  side 
thereof,  the  latter  holding  the  gate,  and  the  former  striving  to 
prevent  the  cart  from  going  through.  They  provoked  a  quarrel, 
and  brought  on  a  personal  encounter.  In  short,  they  went  to 
the  place  in  question  prepared  for,  and  evidently  expecting  a 
fight  in  connection  with  the  abatement  of  the  nuisance,  and 
they  were  not  disappointed.  They  took  the  law  into  their 
own  hands,  and  in  doing  so  they  acted  at  their  peril.  That 
Almy  was  in  the  wrong,  and  liable  to  indictment  for 
maintaining  the  nuisance,  as  well  as  for  the  use  of  violence 
against  the  defendants,  may  be  assumed;  but  this  fact  did  not 
justify  the  defendants  in  committing  a  breach  of  the  peace  in 
abating  it,  the  public  peace  being  of  more  importance  than  the 
assertion  of  the  defendants'  right  to  use  said  highway.  We 
are  therefore  of  the  opinion  that  the  defendants,  and  not  Almy, 
were  the  aggressors  in  the  affray  referred  to,  and  hence  that 
the  presiding  justice  properly  refused  to  charge  as  requested. 
If  the  defendants'  counsel,  in  making  said  requests  to  charge, 


STATE  V.  WHITE  ET  AL. 


70 


intended  to  claim  that  in  case  the  jury  should  find  that  Almy, 
and  not  the  defendants,  committed  the  first  act  of  personal 
violence,  then  they  were  entitled  to  an  acquittal,  it  is  enough 
to  reply  that,  as  the  defendants  were  the  aggressors  in  the  af- 
fray by  wrongfully  bringing  on  the  fight  as  aforesaid,  it  was 
Avholly  immaterial  who  actually  struck  the  first  blow,  and 
hence  that  said  requests  were  pro]jerly  refused. 

But  the  defendants'  counsel  contends  that  the  case  at  bar  is 
quite  similar  to  State  v.  Sherman,  16  R.  I.  631,  and  hence  that 
the  defendants  are  entitled  to  be  exonerated,  as  the  defendant 
was  in  that  case.  State  v.  Sherman  was  a  very  different  case 
from  this.  There  the  defendant,  while  peaceably  engaged  in 
removing  a  causeway  of  dirt  and  stones,  wrongfully  placed  by 
the  complainant  across  the  mouth  of  the  cove  through  which 
defendant  had  the  right  of  ingress  and  egress  to  and  from  his 
land  by  boat,  was  attacked  by  complainant,  whereupon  defend- 
ant, as  he  testified,  pushed  him  away,  using  no  more  force 
than  was  necessary  in  so  doing.  At  the  trial  of  said  case  in  the 
court  of  common  pleas  the  defendant  asked  the  court  to  in- 
struct the  jury  "  that  a  man  in  a  public  place,  if  attacked,  may 
resist  with  his  natural  weapons,  using  no  more  force  than  is 
necessary,  without  retreating."  This  request  was  refused,  and 
this  court  held  it  was  error;  that  one  wrongfully  assailed  in 
a  public  place  is  not  obliged  to  retreat  from  his  assailant  in 
order  to  avoid  a  conflict,  but  may  defend  himself,  meeting 
force  with  such  force  as  is  needful  for  his  protection,  unless 
such  offense  involves  a  homicide,  when  a  different  rule  mav 
prevail.  In  the  case  at  bar,  no  question  of  self-defense  arises. 
The  defendants  were  not  engaged  in  the  peaceable  removal  of 
the  obstruction  in  question  when  attacked  by  Almy,  but  were 
proceeding  in  a  hostile  manner,  in  violation  of  the  peace,  to 
effect  its  removal.  The  personal  conflict  which  resulted  was 
brought  on  by  the  defendants  themselves,  and  hence  they  can 
not  be  permitted  to  urge  that  they  acted  in  self-defense.  In 
State  V.  Sherman,  the  exact  reverse  of  this  wa^  true,  and  the 
defendant  was  properly  permitted  to  rely  on  his  right  of  self- 
defense. 

The  second  ground  for  a  new  trial  is  that  the  verdict  was 
against  the  evidence.  Up'^n  a  sareful  examination  of  the  evi- 
dence, we  are  not  convinced  that  it  is  insufficient  to  sustain 
the  verdict.    Petition  for  a  new  trial  denied  and  dismissed. 


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AMERICAN  CRIMINAL  REPORTS. 


Note.— Tr/ia/  constitutes.— It  is  aii  assault  to  threaten  a  person  with  a 
dano'erous  weapon  within  striking  distance,  though  the  party  threatened  is 
not  actually  struck.    Lwbstadter  v.  Federgreen,  80  Hun  245. 

Justijication.— Merely  being  in  possession  of  premises  will  not  justify  the 
use  of  violence  to  prevent  entering  by  lawful  occupant  Liebstadter  v.  Fed- 
ergreen, supra. 

That  plaintiff  was  a  trespasser  upon  defendant's  premises,  can  not  be 
pleiK^ed  as  defense  in  an  action  for  assault.    Talmage  v.  Smith,  101  Mich.  730. 


Cakr  V.  State. 
(135  Ind.  1.) 

Assault:    What  constitutes— Administration  of  poison— Evidence  of  char- 
acter of  accused. 

1.  The  unlawful  infliction  of  an  injury  by  administering  poison  consti- 

tutes an  assault. 

2.  On  a  trial  for  murder  by  the  administration  of  poison,  evidence  of  de- 

fendant's general  reputation  for  peace  and  quietude  is  admissible. 

Appeal  from  the  Marion  Criminal  Court,  Marion;  M.  F.  Cox, 

Judge. 

Jennie  Carr  was  convicted  of  niurder  and  appeals.  Re- 
versed. 

Francis  T.  Ilord,  Lafayette  Perkins  and  W.  II.  II.  Miller, 
for  appellant. 

A.  G.  Smith,  Attorney-General,  J.  W.  IloUzman  and  J.  M. 
Leathers,  for  the  State. 

Hackney,  J.  In  the  court  below  the  .appellant  was  tried, 
convicted  and  sentenced  to  a  life  imprisonment,  upon  an  in- 
dictment charging  her  with  the  crime  of  murder  in  the  first 
degree,  in  the  killing  of  her  child,  Conwell  Carr,  by  adminis- 
tering to  him  a  dcidly  poison. 

In  the  course  of  the  trial  and  as  a  part  of  her  defense,  it  was 
proposed  to  prove  by  a  competent  witness  that  her  character 
and  reputation  for  peace  and  quietude  were  good.  Upon  the 
objection  of  the  prosecutor,  the  evidence  was  excluded  by  the 
court,  ujion  the  expressed  ground  that  such  trait  of  character 
was  not  involved  in  the  offense  charged.  The  questions  by 
which  such  evidence  was  sought  were  infonnal,  but  as  the 
objection  was  sustained  with  express  reference  to  the  subject- 


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CARR  V.  STATE. 


81 


matter,  and  as  objection  is  not  made  here  as  to  the  form  of 
sucli  questions,  we  will  determine  the  correctness  of  the  ruling 
as  made.  In  Hall  v.  State,  132  Ind.  317,  this  court  passed 
upon  the  point  here  in  issue.  It  is  there  said :  "  The  appellant 
offered  to  prove  his  general  reputation  for  peace  and  quietude, 
and  the  court  excluded  it.  In  this  the  court  committed  an 
error.  Evidence  of  the  general  reputation  of  the  accused  for 
peace  and  quietude  is  permissible  in  a  prosecution  for  murder, 
though  the  murder  may  have  been  committed  by  poisoning." 
In  Warner  v.  State,  114  Ind.  137,  this  court  held  that  an  as- 
sault is  a  constituent  element  of  the  crime  of  murder.  In  Com. 
V.  Stratton,  114  Mass.  303,  the  court  says:  "  Although  force 
and  violence  are  included  in  all  definitions  of  assault  or  assault 
and  battery,  j'et,  where  there  is  physical  injury  to  another 
person,  it  is  suificient  that  the  cause  is  set  in  motion  by  the 
defendant,  or  that  the  person  is  subjected  to  its  operations  by 
means  of  any  act  or  control  which  the  defendant  exerts:''  cit- 
ing 3  Chit.  Crim.  Law,  799;  1  Gabb.  Crim.  Law,  82;  Rose. 
Crim.  Ev.  (8th  Ed.)  296;  3  Bl.  Comm.  120,  and  notes,  and  2 
Greenl.  Ev.,  Sec.  84.  It  is  there  further  said :  "  If  one  should 
hand  an  explosive  substance  to  another,  and  induce  him  to  take 
it,  by  misrepresenting  or  concealing  its  dangerous  qv.alities, 
and  the  other,  ignorant  of  its  character,  should  receive  it,  and 
cause  it  to  explode  in  his  pocket  or  hand,  and  should  be  injured 
by  it,  the  offending  party  would  be  guilty  of  a  battery,  and 
that  would  necessarily  include  an  assault.  *  *  *  It  would 
be  the  same  if  it  exploded  in  his  mouth  or  stomach.  If  that 
which  causes  the  injury  is  set  in  motion  by  the  wrongful  act 
of  the  defendant,  it  can  not  be  material  whether  it  acts  upon 
the  person  injured  externally  or  internally,  by  mechi^nical  or 
chemical  force."  Jieg.  v.  Button,  8  Car.  &  P.  660.  The  con- 
trary is  not  suggested,  but  it  is  practically  conceded,  as  it  must 
be,  that  the  character  for  peace  is  involved  in  the  offense  of 
an  assault  or  an  assault  and  battery.  This  being  true,  and 
having  reached  the  conclusion  that  an  assault  is  involved  in  the 
unlawful  infliction  of  an  injury  by  administering  poison,  the 
action  of  the  court  in  refusing  the  offered  evidence  was  erro- 
neous. The  judgment  of  the  criminal  court  is  reversed,  with 
instructions  to  sustain  the  appellant's  motion  for  a  new  trial. 
Filed  June  15,  1893.  Petition  for  rehearing  overruled  Sep- 
tember 27,  1893. 
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AMERICAN  CRIMINAL  REPORTS. 


Note.— W^af  constitutes.— A  person  who  advances  on  another  with  a 
knife  in  an  angry  and  threatening  manner,  with  intent  to  alarm  him,  under 
circumstances  calculated  to  alarm,  commits  an  assault,  even  though  he  does 
not  touch  the  person  assaulted.    Atteberry  v.  State,  —  Tex,  Cr.  App.— 

Indietment— Sufficiency.— In  Johnson  v.  State,  90  Ga.  441,  the  plaintiff 
in  error,  by  evidence  of  having  put  arsenic  into  coflfee  which  another  drank, 
was  convicted  of  an  assault  with  intent  to  commit  murder,  the  indictment 
cliarging  that  the  accused  "  administered  "  the  poison.  In  reply  to  the  con- 
tention that  this  charge  was  insufficient  to  establish  the  commission  of  an 
assault,  the  court  said:  "  The  charge  is  that  the  accused  '  administered ' 
the  poison.  The  proofs  show  that  it  was  put  into  coffee  with  the  intent  and 
purpose  that  the  same  should  be  df  unk  by  Mr.  Romare  and  several  mem- 
bers of  his  family,  in  ignorance  of  its  presence  in  the  coffee;  and  that  he 
and  some  of  them,  without  knowing  the  poison  was  in  the  coffee,  did  drink 
of  the  same,  Tliese  facts  sufficiently  establish  the  administering  of  the 
poison,  2  Bish.  Crim,  Proc,  §  645.  ,They  also  establish  the  commission  of 
an  assault.  This  last  proposition  is  sustained  by  Com.  v.  Stratton,  114  Mass. 
303,  holding  that  one  is  guilty  of  an  assault  and  battery  who,  knowing  that 
a  thing  contains  a  foreign  substance,  such  as  cantharides,  and  concealing 
the  fact,  delivers  it  to  another  to  be  eaten,  if  the  other,  in  ignorance  of  the 
fact,  eats  it,  and  is  injured  in  health.  Wells,  J,,  who  delivered  the  opinion 
in  that  case,  cites  Reg.  v.  Button,  8  Car,  &  P.  660,  in  which  case  it  was  held 
that  one  who  put  Spanish  flies  into  coffee,  to  be  drunk  by  another,  was 
guilty  of  an  assault.  Although  later  English  cases  seem  to  overrule  this 
decision,  we  agree  with  Judge  Wells  in  the  opinion  that  it  is  more  consistent 
with  general  principles,  and  the  better  law. 

Poison  introduced  into  the  stomach  is  not,  accurately  speaking,  a  weapon, 
if,  indeed,  it  may  be  called  a  weapon  at  all ;  but  nevertheless,  we  are  of  the 
opinion  that  an  assault  with  intent  to  murder  may  be  committed  by  ad- 
ministering poison  in  this  manner.  In  Monday  v.  State,  32  Ga.  672,  this 
court  held  that  an  assault  with  intent  to  murder  might  be  committed  with- 
out the  use  of  a  weapon  of  any  kind.  In  that  case  the  homicide  was 
attempted  by  choking.  In  a  sense,  the  strong  hands  of  the  assailant  might 
be  regarded  as  natural  weapons,  like  the  claws  of  a  lion,  or  the  fangs  of  a 
serpent;  but  the  indictment  did  not  allege  the  use  of  any  weapon  whatever. 
There  is  very  little  substantial  difference  between  assault  with  intent  to 
miu"der  and  an  attempt  to  murder,  and  we  do  not  now  recall  any  case  in 
this  state  where  an  attempted  homicide,  done  in  malice,  hat  jeen  teclmic- 
ally  charged  in  an  indictment  as  an  "  attempt  to  murder." 


People  v.  Gardner. 

(144  N.  Y.  119,) 

Attempt  to  Comirr  Extortion:    IFhat  constitutes— Evidence  of  motive. 

1.  Where   defendant    threatened  to   accuse    another  of  crime,  with  in- 
tent to  himself  commit  that  of  extortion,  and  succeeded  in  obtaining 


PEOPLE  V.  GARDNER. 


83 


money  from  that  other,  the  fact  that  such  person  was  endeavoring  to 
induce  defendant  to  receive  money,  for  the  purpose  of  accusing  him  of 
extortion,  and  so  could  not  have  been  moved  by  fear,  will  not  prevent 
his  conviction  for  an  attempt  at  extortion.  25  N.  Y.  Supp.  1073,  re- 
versed. 
On  the  trial  of  one  indicted  for  attempted  extortion,  in  threatening  to 
accuse  another  of  keeping  a  house  of  ill  fame,  where  it  was  in  evidence 
that  he  was  in  intimate  association  with  that  other,  it  was  error  to  ex- 
clude testimony  in  behalf  of  defendant  that  his  course  was  one  in  obe- 
dience to  the  instructions  of  a  society  for  the  prevention  of  crime, 
whose  agent  he  was. 


Appeal  from  Supreme  Court,  General  Term.  First  depart- 
ment. 

Charles  W.  Gardner  was  convicted  of  an  attempt  to  commit 
extortion.  On  appeal  to  general  term  this  judgment  was  re- 
versed (25  N.  Y.  Supp.  1072,)  and  from  such  judgment  of 
reversal  the  state  appeals.    Affirmed,  and  new  trial  ordered. 

JTenri/  B.  B.  Stapler^  for  the  People. 
John  W.  Goff,  for  respondent. 

Earl,  J.  The  defendant  was  indicted  and  upon  his  trial 
convicted  of  an  attempt  to  commit  the  crime  of  extortion  in 
the  city  of  New  York  on  the  4th  day  of  December,  1892,  by 
attempting  to  obtain  $150  from  Catharine  Amos  by  threaten- 
ing to  accuse  her  of  keeping  a  house  of  prostitution. 

The  following  are  the  sections  of  the  Penal  Code  under 
which  he  was  convicted : 

Sec.  552.  "Extortion  is  the  obtaining  of  property  from 
another,  with  his  consent,  induced  by  a  wrongful  use  of  force 
or  fear,  or  under  color  of  official  right." 

Sec.  553.  "  Fear,  such  as  will  constitute  extortion,  may  be 
induced  by  a  threat "  (among  other  things)  "  to  accuse  a  per- 
son of  any  crime." 

Sec.  34.  "  An  act  done  with  intent  to  commit  a  crime,  and 
tending,  but  failing,  toeifect  its  commission,  is  an  attempt  to 
commit  that  crime." 

Sec.  685.  "A  person  may  be  convicted  of  an  attempt  to 
commit  a  crime,  although  it  appears  on  the  trial  that  the  crime 
was  consummated,  unless  the  court,  in  its  discretion,  dis- 
charges the  jury  and  directs  the  defendant  to  be  tried  for  the 
crime  itself." 


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AMERICAN  CRIMINAL  REPORTS. 


Catharine  Amos,  who  was  the  principal  witness  for  the  peo- 
ple, testified  that  for  nine  years  she  had  been  the  keeper  of  a 
house  of  prostitution  in  the  city  of  New  York,  and  that  the 
defendant,  in  December,  1892,  came  to  her  and  agreed  with 
her  that  if  she  would  pay  certain  sums  of  money  to  him,  and 
especially  the  sum  of  $150,  he  would  not  accuse  her  of  the 
crime,  and  that  from  October  19,  1892,  to  December  4,  1892, 
she  had  been  acting  as  a  decoy  of  the  police,  and  trying  to  in- 
duce the  defendant  to  receive  money  from  her  under  such 
circumstances  as  would  render  him  guilty  of  a  crime,  and  en- 
able tlie  police  to  arrest  and  convict  him  of  it.  The  evidence 
tended  to  sh-  >w  the  existence  of  every  element  constituting  the 
crime  of  extortion,  except  that  Mrs.  Amos,  in  paying  the 
money  exacted  by  the  defendant,  was  not  actuated  by  fer  '. 

It  is  urged  in  behalf  of  the  defendant  that  the  fact  that  his 
threats  did  not  inspire  fear,  inducing  any  action  on  the  part 
of  Mrs.  Amos,  an  element  essential  to  constitute  the  com- 
pleted crime  of  extortion,  renders  it  impossible  to  sustain  an 
indictment  and  conviction  for  the  lesser  crime  of  an  attempt 
at  extortion,  and  so  a  majority  of  the  judges  constituting  the 
general  term  held.  We  are  of  opinion  that  those  learned 
judges  fell  into  error.  The  threat  of  the  defendant  was  plainly 
an  act  done  with  intent  to  commit  the  crime  of  extortion,  and 
it  tended,  but  failed,  to  effect  its  commission,  and  therefore 
the  act  was  plainly,  within  the  statute,  an  attempt  to  commit 
the  crime.  The  condition  of  Mrs.  Amos'  mind  was  unknown 
to  the  defendant.  If  it  had  been  such  as  he  supposed, 
the  crime  could  have  been,  and  probably  would  have  been, 
consummated.  His  guilt  was  just  as  great  as  if  he  had 
actually  succeeded  in  his  purpose.  His  wicked  motive  was 
the  same,  and  he  had  brought  himself  fully 'and  precisely 
within  the  letter  and  policy  of  the  law.  This  crime,  as  de- 
fined in  the  statute,  depends  upon  the  mind  and  intent  of 
the  wrongdoer,  and  not  on  the  effect  or  result  upon  the 
person  sought  to  be  coerced.  As  said  in  People  v.  Momn, 
123  N.  Y.  254,  where  the  defendant  was  convicted  of  an  at- 
tempt to  commit  the  crime  of  larceny  by  thrusting  his  hand 
into  the  pocket  of  a  woman,  which  was  not  shown  to  con- 
tain anything,  "  the  question  whether  an  attempt  to  commit 
a  crime  has  been  made  is  determinable  solely  by  the  con- 
dition of  the  actor's  mind,  and  his  conduct  in  the  attempted 


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PEOPLE  V.  GARDNER. 


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consummation  of  his  design.  *  *  *  An  attempt  is  made 
when  an  opportunity  occurs  and  the  intending  perpetra- 
tor has  done  some  act  tending  to  accomplish  his  purpose, 
although  he  is  baffled  by  an  unexpected  obstacle  or  condi- 
tion." In  Com.  V.  Jacobs,  9  Allen,  274,  the  defendant  was 
convicted  of  soliciting  a  person  to  leave  the  commonwealth 
for  the  purpose  of  enlisting  in  military  service  elsewhere,  al- 
though such  person  was  not  fit  to  become  a  soldier,  and  there 
it  was  said  :  "  Whenever  the  law  makes  one  step  toward  the 
accomplishment  of  an  unlawful  object,  with  the  intent  or  pur- 
pose of  accomplishing  it,  criminal,  a  person  taking  that  step, 
with  that  intent  or  purpose,  and  himself  capable  of  doing 
every  act  on  his  part,  to  accomplish  that  object,  can  not  pro- 
tect himself  from  responsibility  by  showing  that,  by  reason  of 
some  fact  unknown  to  him  at  the  time  of  his  criminal  attempt, 
it  could  not  be  fully  carried  into  effect  in  the  particular  in- 
stance." It  is  now  the  established  law,  both  in  England  and 
in  this  country,  that  the  crime  of  attempting  to  commit  lar- 
ceny may  be  committed,  although  there  was  no  property  to 
steal,  and  thus  the  full  crime  of  larceny  could  not  have  been 
committed.  lieg.  v.  Brown,  24  Q.  B.  Div.  357 ;  Jieg.  v.  Ring, 
06  L.  T.  (N.  S.)  300  ;  Com.  v.  McDonald,  5  Cush.  365 ;  People 
V.  Jones,  46  Mich.  441 ;  State  v.  Wilson,  30  Conn.  500 ;  Clark 
V.  State,  86  Tenn.  511 ;  State  v.  Beat,  37  Ohio  St.  108  ;  Jiogers 
V.  Com.,  5  Serg.  &  R.  363 ;  Hamilton  v.  State,  36  Ind.  280.  In 
Bex  V.  Ilolden,  Buss.  &  R.  154,  it  was  held,  on  an  indictment 
under  a  statute  against  passing  or  disposing  of  forged  bank 
notes  with  intent  to  defraud,  that  it  was  no  defense  that  those 
to  whom  the  notes  were  passed  knew  them  to  be  forged,  and 
therefore  could  uut  be  defrauded.  In  Beg.  v.  Goodchild,  2 
Car.  &  K.  293,  and  Beg.  v.  Goodall,  2  Cox  Cr.  Cas.  41,  it 
was  held,  under  a  statute  making  it  a  felony  to  administer 
])oison  or  use  any  instrument  with  intent  to  procure  the  mis- 
carriage of  any  woman,  that  the  crime  could  be  committed  in 
a  case  where  the  woman  was  not  pregnant.  It  has  been  held 
in  several  cases  that  there  may  be  a  conviction  of  an  attempt 
to  obtain  property  by  false  pretenses  although  the  person  from 
whom  the  attempt  Avas  made  knew  at  the  time  that  the  pre- 
tenses were  false,  and  could  not,  therefore,  be  deceived.  Beg. 
V.  Ilensler,  11  Cox  Cr.  Cas.  570;  Beg.  v.  Banks,  12  Cox  Cr. 
Cas.  393;  Beg.  v.  irancis,  Id.  613;  Beg.  v.  Bansford,  13  Cas. 


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AMERICAN  CRIMINAL  REPORTS. 


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Cr.  9 ;  Iteg.  v.  Jarman,  14  Cox  Cr.  Cas.  112 ;  Eeg.  v.  Eagleton, 
Dears.  Cr.  Cas.  515 ;  Eeg.  v.  lioeluvA;  Dears.  &  13.  Cr.  Cas. 
24 ;  lieg.  v.  Ball,  1  Car.  &  M.  249 ;  People  v.  Stites,  75  Cal. 
570;  Jlamilton  v.  State,  36  Ind.  280;  People  v.  Hush,  4  Hill 
133;  People  V.  Lawton,  56  Barb.  126;  McDevmott  v.  People, 
5  Parker  Cr.  Cas.  104 ;  Mackesey  v.  People,  6  Parker  Cr. 
Cas.  114.  And  to  the  same  etfeot  are  the  text-books  on  crim- 
inal law.  1  Bish.  Cr.  Law,  §  723  et  seq.  So  far  as  I  can 
discover,  there  is  absolutel}'  no  authority  upholding  the  con- 
tention of  the  learned  counsel  for  the  defendant,  that  because 
the  defendant  did  not  inspire  fear  in  the  mind  of  Mrs.  Amos 
by  his  threats,  and  thus  could  not  have  been  guilty  of  the 
completed  crime  of  extortion,  therefore  he  can  nc^,  be  con- 
victed of  attempting  to  commit  the  crime.  That  contention  is, 
as  I  believe,  also  without  any  foundation  in  principle  or 
reason.  Therefore,  upon  the  facts  alleged  in  the  indictment 
and  appearing  upon  the  trial,  the  defendant  could  be  convicted 
of  an  attempt  to  commit  the  crime  of  extortion,  and  the  gen- 
eral term,  in  reversing  the  judgment,  should  not,  therefore, 
have  refused  to  grant  a  new  trial,  and  have  discharged  the 
defendant. 

Our  attention  has  been  called,  on  behalf  of  the  defendant, 
to  many  other  exceptions  taken  by  his  counsel  during  the 
progress  of  the  trial,  which,  it  is  claimed,  point  out  errors.  Wo 
have  examined  all  of  them,  but  deem  it  important  to  call  par- 
ticular attention  to  but  two. 

Upon  the  trial  it  was  proved  that  defendant  and  Mrs.  Amos 
were  together  upon  certain  occasions  having  a  material  bear- 
ing upon  the  case,  and  a  witness  was  called  to  identify  the 
defendant  as  the  person  who  was  in  her  company  at  one  of 
the  times  and  places  referred  to.  The  witness  was  asked: 
"  Do  you  know  Mr.  Gardner  ? "  Answer :  "  I  do  not."  Ques- 
tion :  "  Would  you  know  him  if  you  saw  him  ? "  Answer : 
"  Yes,  sir."  Then  the  court  directed  the  defendant  to  stand 
up.  The  defendant's  counsel  objected  to  his  standing  up, 
or  that  he  should  be  compelled  to  stand  up,  or  to 
testify  against  himself.  The  court  replied:  "The  prisoner 
will  rise.  Stand  him  up."  And  then,  against  the  objection 
of  his  counsel,  the  defendant  was  forcibly  compelled  to  stand 
up,  and  then  he  was  identified  by  the  witness.  It  is  now 
claimed  on  his  behalf  that  this  action  on  the  part  of  the 


PEOPLE  V.  GARDNER. 


87 


recorder  violated  his  constitutional  rights  by  compelling  him 
to  be  a  witness  against  himself.  Const.  N.  Y.  Art.  1,  §  6 ; 
Const.  U.  S.,  Amend.  5.  We  do  not  think  that  the  defend- 
ant's constitutional  right  was  violated,  or  that  he  was  com- 
pelled, within  the  meaning  of  the  constitutional  provisions 
referred  to,  to  give  evidence  against  himself.  He  was  bound 
to  be  in  court,  and  in  the  presence  of  the  jury,  the  recorder, 
and  the  witnesses  who  might  be  there.  The  recorder,  the 
jurors,  and  the  witnesses  had  the  right  to  see  him,  and  he  had 
the  right  to  see  them.  It  was  necessary  that  he  should  be  iden- 
tified as  the  person  named  in  the  indictment  and  charged  with 
the  crime.  His  mere  standing  up  did  not  identify  him  with 
the  alleged  crime,  and  did  not  disclose  any  act  connected  with 
the  crime.  There  was  nothing  on  his  person  or  in  his  appear- 
ance that  in  any  way  connected  him  with  the  crime,  or 
furnished  any  evidence  whatever  of  his  guilt.  Suppose  he 
had  come  into  court  with  his  face  veiled,  could  not  the 
recorder  compel  him  to  remove  the  veil,  that  his  face  might 
be  seen  ?  Could  he  not  compel  him  to  remove  his  hat  ? 
to  stand  or  sit  in  the  prisoners'  dock  ?  In  the  examination  of 
the  witness,  could  not  the  district  attorney  have  pointed  to 
the  defendant  and  asked  the  witness  whether  he  was  the  per- 
son he  had  seen  with  Mrs.  Amos  ?  Instead  of  compelling  the 
defendant  to  stand  up,  could  not  the  recorder  have  directed 
the  witness  to  go  to  the  place  where  he  was,  and  look  at  him 
with  the  view  of  identifying  him  ? 

If  all  these  things  could  be  done  without  violating  the  rights 
of  the  prisoner,  how  is  it  possible  to  say  that  he  was  harmed, 
or  that  his  constitutional  right  was  invaded,  by  compelling 
him  to  stand  up  for  the  purpose  of  identification?  For 
the  orderly  conduct  of  a  criminal  court  it  is  requisite  that 
the  trial  judge  should  have  the  power  to  say  what  place 
the  prisoner  shall  occupy  in  the  court  room,  and  whether  at 
any  time  he  shall  stand  or  sit,  and  be  covered  or  uncovered; 
and  he  must  have  the  power  at  all  times  to  keep  the  prisoner 
within  sight  of  the  court,  the  jury,  the  counsel  and  the  wit- 
nesses. The  history  of  the  constitutional  provision  referred  to 
clearly  demonstrates  that  it  was  not  intended  to  reach  a  case 
like  this.  Story,  Const.  Lim.,  §  1788;  1  Steph.  Cr.  Law,  440. 
The  main  purpose  of  the  provision  was  to  prohibit  the  compul- 
sory oral  examination  of  prisoners  before  trial,  or  upon  trial, 


■it;'!;'! 


■1^. 

m 


r4'  •  f 


88 


AMERICAN  CRIMINAL  REPORTS. 


I     ; 

i.i 


for  the  purpose  of  extorting  unwilling  confessions  or  declara- 
tions ip^plicating  them  in  crime.  It  could  reach  further  only 
in  exceptional  and  peculiar  cases  coming  within  the  spirit  and 
puriKJse  of  the  inhibition.  A  murderer  may  be  forcibly  taken 
before  his  dying  victim  for  identification,  and  the  dying  dec- 
larations of  his  victim  may  then  be  proved  uix>n  his  trial  for 
his  identification.  A  thief  may  be  forcibly  examined,  and  the 
stolen  property  may  be  taken  from  hia person  and  brought  into 
court  for  his  identification.  A  prisoner's  person  may  be  ex- 
amined for  marks  and  bruises,  and  then  they  may  be  proved 
upon  his  trial  to  establish  his' guilt;  and  it  would  bo  stretching 
the  constitutional  inhibition  too  far  to  make  it  cover  such  cases, 
and  cases  like  this,  and  the  inhibition  thus  applied  would  greatly 
embarrass  the  administration  of  justice.  In  B!<'e  v.  R'lce^ 
47  N.  J.  Eq.  559,  Beasley,  C.  J.,  said :  "  That  every  court  of 
judicature,  as  an  indispensable  attribute,  is  possessed  of  the 
power  to  require  every  person  who  is  present  as  a  party,  or 
who  is  a  witness  under  examination,  to  disclose  his  or  her  face 
to  the  court  or  to  the  jury,  if  there  be  one,  would  not  seem  in 
any  degree  questionable.  Without  such  exposure  there  would  be 
no  certainty  who  the  person  really  Avas  who  assumed  to  act  as 
party  or  witness.  To  order  such  persons  to  expose  their  faces 
to  view  is  common  usage  in  every  court,  and  thus  far  the  prac- 
tice seems  not  to  be  opened  to  any  question."  Our  attention 
is  called  to  authorities  bearing  more  or  less  upon  the  question 
we  are  now  considering,  and  we  find  that  they  are  not  all  har- 
monious. In  State  v.  Jcuwbs,  5  Jones  (N.  C.)  259,  it  was  held 
that  a  judge  has  no  right  to  compel  a  defendant  in  a  criminal 
prosecution  to  exhibit  himself  to  the  inspection  of  the  jury  for 
the  purpose  of  enabling  them  to  determine  his  stattis  as  a  free 
negro.  There  the  defendant  was  indicted  as  a  free  negro  for 
carrying  arms,  and  it  became  necessary  for  the  prosecution  to 
show  that  he  was  a  negro,  and  in  that  state  a  man  was  held  to 
be  a  negro  who  had  as  much  as  one-sixteenth  part  of  African 
blood  in  his  veins.  There  the  defendant  was  compelled  to 
stand  up,  that  the  jury  might  see  whether  he  was  a  negro  or 
not,  and  to  determine  that  fact  from  their  own  observation. 
Thus  there  was  a  sense  in  which  it  could  be  said  that  the  de- 
fendant Avas  compelled  to  furnish  evidence  against  himself  upon 
a  vital  issue  to  be  tried,  and  so  that  case  is  distinguishable 
from  this.    But  no  authority  was  cited  to  uphold  that  decision 


PEOPLE  V.  GARDNER. 


89 


and  wo  entertain  no  doubt  that  it  was  erroneous.  The  judge 
writing  the  opinion  said :  "  Admitting  that  the  state  has  a 
rjo-ht  to  compel  his  presence  at  the  trial,  it  does  not  follow  that 
he  is  bound  to  stand  or  sit  within  view  of  the  jury."  Can  this 
observation  be  correct  ?  Certainly,  in  this  ,'tate,  it  can  not  be 
maintained  that  a  prisoner,  when  on  trial,  coild  not  be  com- 
pelled to  stand  or  sit  in  view  of  the  jury,  it  is  the  right  of 
the  prisoner  to  be  in  the  presence  and  view  of  the  jury,  and  it 
is  the  right  of  the  prosecution  to  have  him  in  the  view  of  the 
presidi;  .;' judge  and  jury  and  the  counsel  engaged  in  the  trial. 
And  whether  at  any  particular  time  he  should  stand  up  or  sit 
down  in  the  presence  of  the  jury  must  be  a  matter  resting  in 
the  discretion  of  the  trial  judge,  and  in  no  sense  can  it  be  said 
that  by  the  exercise  of  such  discretion  his  constitutional  right 
is  involved.  In  the  case  of  State  v.  Johnson,  G7  N.  C.  55,  the 
defendant  was  on  trial  for  rape,  and  on  the  trial  the  prosecu- 
trix was  asked  by  the  prosecuting  attorney  to  look  around  the 
court  room  and  see  if  she  could  identify  the  guilty  party,  and 
she  pointed  to  the  prisoner  and  said,  "  That  is  the  black  ras- 
cal." It  was  insisted  that  this  was  to  make  the  prisoner  furnish 
evidence  against  himself;  that  he  had  the  right  to  be  there  and 
confront  his  accusers,  and  that  for  the  state  to  take  advantage 
of  his  presence  to  have  him  pointed  out  and  identified  placed 
him  in  a  dilemma  of  either  abandoning  his  constitutional  right 
to  be  present  or  of  affording  the  means  of  his  conviction  by  its 
exercise.  The  court  held  against  this  contention,  and  that  no 
error  was  committed.  Suppose  in  that  case  the  court  had 
placed  tlie  prisoner  where  he  would  have  been  conspicuously 
in  view  of  the  court,  the  jury  and  the  witnesses,  and  the  prose- 
cutrix had  then  identified  him.  Would  his  constitutional  right 
have  been  invaded  ?  And  if  he  had  been  compelled  to  stand 
up,  would  he  have  been  compelled,  within  the  meaning  of  the 
constitution,  to  give  evidence  against  himself  ?  We  think  not. 
We  are  therefore  of  opinion  that  no  error  was  committed  in 
the  case  in  compelling  the  defendant  to  stand  up  for  iden- 
tification. 

It  appeared  upon  the  trial,  by  the  witnesses  for  the  prosecu- 
tion, that  prior  to  the  time  of  the  alleged  offense  the  defend- 
ant was  much  in  the  company  of  Mrs.  Amos;  that  he  visited 
her  at  her  house;  that  she  visited  him  at  his  house;  that  he  fre- 
quently rode  with  her  through  the  streets  of  New  York,  and 


\i 


f 


11 


00 


AMERICAN  CRIMINAL  REPORTS. 


II  <i 


m 


visited  saloons  and  drank  wine  with  lior.  These  facts  wcto 
proved  on  tiio  part  of  the  prosecution  to  show  his  relations 
with  Mrs.  Amos  and  his  motives,  and  as  links  in  the  chain 
showin;;,'  the  commission  of  the  alleged  crime.  The  defendant 
offered  "to  show  by  himself  and  other  witnesses  that  in  his  re- 
lations with  Mrs.  Amos  he  was  acting  under  the  directions  of 
ofticcrs  of  the  Society  for  the  Prevention  of  Crime;  for  the  pur- 
pose of  gaining  her  confidence  and  good  will,  and  securing  from 
her  an  aifldavit  which  could  be  used  for  the  arrest  of  a  former 
agent  of  that  society  who  was  supposed  to  be  engaged  in  extort- 
ing money  from  keoi)ers  of  houses  of  prostitution  by  threats  of 
prosecution;  and  the  recorder  excluded  the  evidence.  It  is  now 
claimed  that  in  such  exclusion  error  was  committed.  We  think 
the  evidence  should  have  been  received.  The  defendant  should 
have  been  permitted  to  prove  that  he  acted  under  the  general 
instructions  of  the  Society  for  the  Prevention  of  Crime,  whose 
ao-ent  he  was,  and  that  he  reported  his  acts  to  its  officers,  and 
followed  their  directions.  Such  proof  would  have  had  a  tend- 
ency to  put  an  innocent  aspect  upon  his  acts,  which  would 
otherwise  seem  to  be  a  part  of  the  scheme  to  commit  the  crime 
with  which  he  was  charged.  It  is  claimed  on  behalf  of  the 
people  that  the  exclusion  of  this  evidence  was  not  harmful  to 
the  defendant,  as  the  facts  were  nevertheless  proved.  We 
have  carefully  read  all  the  evidence,  and  we  are  not  satisfied 
that  the  defendant  did  not  suffer  harm  from  the  rulings  com- 
plained of.  The  recorder  had  laid  down  the  law  by  these 
rulings,  and  the  defendant  did  not  have  the  benefit  of  the  evi- 
dence offered  in  the  submission  of  the  case  to  the  jury.  The 
case  went  to  the  jury  with  the  rulings  of  the  reconier,  during 
the  progress  of  the  trial,  that  that  kind  of  evidence  was  incom- 
petent and  illegal. 

Other  things  transpired  during  the  progress  of  the  trial,  to 
which  our  attention  has  been  called,  which,  though  not  pre- 
senting legal  errors  which  would  call  for  a  reversal  of  the 
judgment  of  conviction,  were  yet  of  such  a  character  that  they 
may  have  been  harmful,  and  probably  were  harmful,  to  the 
defendant.  We  will  not  comment  upon  them,  as  they  may 
not,  and  probably  will  not,  appear  upon  another  trial. 

On  account  of  the  error  above  pointed  out,  while  the  general 
term  should  have  reversed  the  judgment  below,  it  should 
also  have  granted  a  new  trial.    Our  conclusion,  therefore,  is 


HUDSON  V.  PARKER. 


01 


that  tho  order  of  the  general  term  should  be  so  modified  as 
simply  to  reverse  the  judgment  of  conviction,  and  to  grant  u 
new  trial.    All  concur.    Ordered  accordingly. 


Hudson  v.  Parkeb. 
(156  U.  8.  377.) 
(No.  9  Original.) 

Bail  after  Conviction:    Puwer  of  supreme  court— Power  of  justices— 

Mandamus  to  judge, 

1.  Tlie  supreme  court  can  not,  by  rule,  add  to  its  powers,  but,  having  the 

IMjwer  to  admit  to  bail  in  criminal  cases  ])ending  proceedings  in  error, 
it  may,  by  rule,  regulate  tlie  manner  of  taking  bail. 

2.  Any  justice  of  the  supreme  court,  having  iwwer,  by  the  acts  of  Congress, 

to  allow  a  writ  of  error,  issue  the  citation,  take  tlie  security  reciuired  by 
law,  and  grant  a  supersedeas,  has  the  authority,  as  incident  thereto, 
to  order  plaintiff  in  error  to  be  admitted  to  bail,  independently  of  any 
rule  of  court.    Mr.  Justice  Brewer  and  Mr.  Justice  Brown,  dissenting. 

8,  An  order  by  a  justice  of  the  supreme  court  as  follows  :  "  Writ  of  error, 
to  operate  as  a  supersedeas,  allowed,  returnable  according  to  law,  the 
defendant  to  furnish  bond  in  the  sum  of  |5,0(X),  conditioned  according  to 
law,  subject  to  the  approval  of  the  district  judge" — is  not  a  mere 
supersedeas,  with  reference  of  the  matter  of  bail  to  the  trial  judge,  but 
is  a  command  with  respect  to  bail.  Mr.  Justice  Brewer  and  Mr.  Justice 
Brown,  dissenting. 

4.  Though  the  discretion  of  a  judge  in  a  matter  intrusted  to  his  judicial 
discretion  can  not  be  controlled  by  mandamus,  yet  if  he  declines  to 
exercise  his  discretion  or  to  act  at  all,  mandamus  will  lie  to  compel  him 
to  act. 

This  was  a  petition  for  a  writ  of  mandamus  to  the  Honor- 
able Isaac  C.  Parker,  the  district  judge  of  the  United  States 
for  the  western  district  of  Arkansas,  to  command  him  to 
admit  the  petitioner  to  bail  on  a  writ  of  error  from  this  court, 
dated  August  14,  1894,  upon  a  judgment  rendered  by  the 
district  court  for  that  district  at  May  term,  1894,  to  wit,  on 
July  21,  1894,  adjudging  him,  upon  conviction  by  a  jury,  to 
be  guilty  of  an  assault  with  intent  to  kill,  and  sentencing  him 
to  imprisonment  for  the  term  of  four  years  at  hard  labor  at 
Brooklyn,  in  the  State  of  New  York. 

The  petition  alleged  that  Mr.  Justice  Brewer,  the  justice  of 


1        '  * 


'"''PI 


'kI. 


II 

■pi 

V 

B 

iJ 


r'lll":^' 


92 


AMERICAN  CRIMINAL  REPORTS. 


!      ; 


this  court  assigned  to  the  Eighth  circuit,  in  which  the  district 
court  was  held,  being  absent  from  that  circuit  and  from  the 
city  of  Washington,  the  petitioner,  on  August  14,  189-i,  pre- 
sented to  Mr.  Justice  White,  at  chambers  in  this  city,  a  peti- 
tion for  a  writ  of  error  upon  that  judgment,  and  for  a  super- 
sedeas and  bail  pending  the  writ  of  error ;  and  that  Mr. 
Justice  White  sign«^d  and  indorsed  upon  that  petition  the  fol- 
lowing- order : 

"  Writ  of  error,  to  operate  as  a  supersedeas,  allowed,  return- 
able according  to  law,  the  defendant  to  furnish  bond  in  the 
sum.  of  five  thousand  dollars,  conditioned  according  to  law, 
subject  to  the  approval  of  the  district  judge.  E.  D.  White, 
Justice  Supreme  Court  of  the  United  States. 

"  Washington,  August  14,  1894." 

The  petition  for  a  mandamus  further  alleged  that  on  Sep- 
tember 3,  1894,  after  the  writ  of  error  had  been  issued,  and 
the  citation  served  upon  the  United  States,  the  petitioner  pre- 
sented to  the  district  judge,  in  ojien  court,  and  requested  him 
to  approve,  a  bond  in  the  sum  of  $5,000,  executed  by  himself, 
as  principal,  and  by  four  persons,  residents  of  the  western 
district  of  Arkansas,  as  sureties,  who  (as  appeared  by  their  alft- 
davits  annexed  to  the  bond)  were  worth  in  their  own  right, 
over  and  above  their  debts  and  liabilities  and  the  property 
exempt  by  law  from  execution,  the  sum  of  $17,500. 

This  bond,  which  was  filed  with  the  petition  for  a  man- 
damus, was  dated  August  27,  1894;  recited  that  the  petitioner 
had  sued  out  a  writ  of  error  from  this  court,  upon  which  a 
citation  had  been  issued  and  served  upon  the  United  States, 
and  that  the  petitioner  had,  by  order  of  Mr.  Justice  White, 
beCii  admitted  to  bail,  pending  the  writ  of  error,  in  the  sum  of 
$5,000;  and  was  conditioned  that  the  petitioner  should  pros- 
ecute his  writ  of  error  with  effect  and  without  delay,  and 
should  abide  the  judgment  of  this  court,  aod.  if  this  court 
should  reverse  the  judgment  of  the  district  court,  appear  in 
that  court  until  discharged  according  to  law. 

The  petition  for  a  mandamus  further  alleged  that,  upon  the 
presentation  of  this  bond  to  the  district  judge,  he  refused  to 
approve  it,  or  to  discharge  the  petitioner,  and  made  and  signed 
an  order,  which,  after  reciting  the  application  to  him  for  the 
approval  of  the  bond,  and  the  order  of  Mr.  Justice  White,  pro- 
ceeded and  concluded  as  follows : 


^^^ite 


HUDSON  V.  PARKER. 


93 


"  It  is  found  by  the  judge  of  this  coqrt,  that  the  above  order 
is  made  without  authority  of  hiw,  and  is  therefore  invalid,  and 
that  the  bond  approved  by  him  in  obedience  to  it  would  be 
null  and  void,  and  that  there  would  bo  no  obligation  of  the 
sureties  to  have  the  principal  in  court  when  and  where  he  is 
required  by  the  terms  of  the  bond  to  appear,  nor  would  there 
be  any  obligation  resting  on  the  principal  to  appear  as  required 
by  the  terms  of  the  bond.  For  the  above  reasons,  the  judge 
of  this  court  refuses  to  approve  the  bond  tendered  by  defend- 
ant; and  further,  it  is  noted  that  defendant  has  made  no  legal 
tender  of  bail.    I.  0.  Parker,  United  States  District  Judge." 

The  petition  for  a  writ  of  mandamus  also  alleged  that  the 
writ  of  error  had  been  duly  entered  and  was  pending  in  this 
court,  and  the  petitioner  was  still  confined  in  prison  at  Fort 
Smith,  in  the  State  of  Arkansas;  and  prayed  that  the  order  of 
Mr.  Justice  White  might  be  affirmed  by  this  court,  and  the 
district  judge  be  ordered  to  approve  the  bond,  and  discharge 
the  petitioner,  or  that  his  bond  might  be  approved  by  this 
court,  and  the  petitioner  discharged;  and  for  all  other  proper 
relief. 

This  court  gave  leave  to  file  the  petition,  and  granted  a  rule 
to  show  cause  why  a  peremptory  mandamus  should  not  issue 
as  i)rayed  for. 

The  district  judge,  in  h'*'^  return  to  the  rule,  stated  that  on 
August  6,  1 894  (as  appeared  by  the  recortl),  he  ordered  that, 
upon  the  filing  of  an  assignment  of  errors,  the  clerk  issue  a 
writ  of  error  taking  the  case  to  this  court,  but  that,  at  the  re- 
quest of  the  petitioner's  counsel,  stating  that  they  had  not  de- 
termined whether  they  would  take  the  case  to  this  court,  the 
writ  of  error  was  not  immediately  issued  by  the  clerk,  and  that 
the  application  to  Mr.  Justice  White  for  a  writ  of  error  and 
for  supersedeas  and  bail  was  made  before  the  writ  of  error  was 
issued;  that  when  Mr.  Justice  White's  order  was  made  there 
had  been  no  citation  served,  but  (as  the  record  showed)  the 
citation,  signed  by  him  on  August  14,  1894,  was  not  served 
until  August  21,  1894;  and  that  after  Mr.  Justice  White's 
order,  "  the  petitioner,  with  others,  was  tried  and  convicted 
of  conspiracy  to  run  away  the  principal  witness  against  him ' 
in  tlie  above  entitled  cause;  that  one  of  the  conspirators  gave 
evidence  against  him,  and  that  he  is  now  in  jail  at  Fort  Smith, 
Arkansas,  on  that  charge." 


WlMi 

iri'.!'  \  '      »v! 


\lf\  if 


I;  '  ( 


9-t 


AMERICAN  CRIMINAL  REPORTS. 


lit  ^.  n 

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The  return  also  set  fgrth  at  length  various  reasons  of  la\v 
why  a  writ  of  mandamus  should  not  issue,  which  may  be 
briefly  stated  as  follows : 

First.  That  the  petitioner  had  a  clear,  adequate  and  fom- 
plete  remedy,  by  applying  to  Mr.  Justice  Brewer,  the  justice 
assigned  to  the  Eighth  circuit,  for  the  approval  of  the  bond. 

Second.  That  under  paragraph  2  of  rule  36  (11  Sup.  Ct.  iv.) 
of  this  court,  the  matter  of  admitting  to  bail  and  approving 
the  bond  was  a  matter  requiring  the  exercise  of  judicial  power 
and  discretion,  involving  the  decision  of  questions  of  law  and 
the  ascertainment  of  facts,  and  could  not  be  controlled  by  writ 
of  mandamus. 

Third.  That  the  bond,  if  given,  would  be  void,  because,  by 
paragraph  2  of  rule  36,  a  person  convicted  and  sentenced  for 
crime  could  only  be  admitted  to  bail  after  citation  servetl. 

Fourth.  That  the  bond  would  be  void,  because,  by  para- 
graph 2  of  rule  36,  Mr.  Justice  White,  not  being  the  justice  of 
this  court  assigned  to  the  Eighth  circuit  (according  to  the  last 
allotment,  made  April  2,  1894,  (152  U.  S.  711;  14  Sup.  Ct.  x), 
nor  a  judge  of  the  circuit  court  of  that  circuit,  nor  the  dis- 
trict judge  of  any  district  in  that  circuit,  had  no  authority  to 
make  the  order. 

Fifth.  That  paragraph  2  of  rule  36  was  void,  for  want  of 
power  in  this  court,  either  by  the  common  law,  or  under  any 
act  of  Congress,  to  order  bail  to  be  taken  after  conviction  and 
sentence  of  such  a  crime  as  that  of  which  the  petitioner  had 
been  convicted. 

The  district  judge,  in  concluding  his  return,  submitted  the 
questions  involved  to  the  judgment  of  this  court;  stated  that 
he  would,  as  a  matter  of  course,  enforce  by  order  any  decision 
given  by  this  court  in  the  premises;  and  prayed  to  be  dismissed 
without  day. 

The  petitioner  demurred  to  the  return. 

Wm.  3f.  Cravens  and  A.  H.  Garland,  for  petitioner. 
Judge  I.  C.  Parker,  in  ^o.  per. 

'     Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

By  express  act  of  Congress,  beginning  with  the  first  organ- 
ization of  the  judicial  system  of  the  United  States,  this  court 


HUDSON  V.  PARKER. 


95 


and  the  circuit  and  district  courts  are  empowered  to  issue 
all  writs,  not  specially  provided  for  by  statute,  which  may  be 
necessary  for  the  exercise  of  their  respective  jurisdictions,  and 
aoreeable  to  the  principles  and  usages  of  law.  Act  Septem- 
ber 21, 1789, 0.  20,  §  11  (I  Stat.  81,  82);  Rev.  St.,  §  716;  '','iock- 
tnn  V.  Bishop,  2  How.  71;  Hardeman  v.  Anderson,  1  Hov/.  610; 
Ex  parte  Ifilwaukee  Ji.  i?.,  5  Wall.  188.  Under  the  first 
judiciary  act  this  court  had  power  "  to  make  and  establish  all 
necessary  rules  for  the  orderly  conducting  of  business,"  in  all 
the  courts  of  the  United  States.  Act  September  21,  1789,  c. 
20,  §  17  (I  Stat.  83).  And  successive  statutes  recognized  its 
power  to  make  rules,  not  inconsistent  with  the  laws  of  the 
United  States,  prescribing  the  forms  of  writs  and  other  process 
at  common  law,  as  well  as  in  equity  or  admiralty,  in  those 
courts.  Acts  May  8,  1792,  c.  36,  §  2  (1  Stat.  276);  May  19, 
1S28,  c.  OS,  §§  1,  3  (1  Stat.  281);  Act  August  23,  1812,  c.  188, 
§  0  (5  Stat.  518);  War/man  v.  Southard,  10  Wheat.  1,  27-29; 
Banh  v.  Hoisted,  10  Wheat.  51;  Beers  v.  Hauyhton,  9  Pet.  329, 
3()(>;  Ward  v.  Chamhrlain,  2  Black.  130,  436.  Since  the  act 
of  June  1,  1872  (chapter  255,  §  5),  indeed,  the  practice,  plead- 
ings, and  forms  and  modes  of  proceedings  in  actions  at  law  in 
the  circuit  and  district  courts  of  the  United  States  are  re- 
quired to  conform,  as  near  as  may  be,  to  those  existir^g  at  the 
time  in  like  causes  in  the  courts  of  record  of  the  state  within 
which  they  are  held,  any  rule  of  court  to  the  contrary  not- 
withstanding. 17  Stat.  197;  Rev.  St.  §  911.  But  this  act  does 
not  include  the  manner  of  bringing  cases  from  a  lower 
court  of  the  United  States  to  this  court.  In  re  Chateavyay 
Ore  tfe  Iron  Co.,  128  U.  S.  511;  9  Sup.  Ct.  150;  Fishhurn  v. 
Railway  Co.,  137  U.  S.  60;  11  Sup.  Ct.  8.  Under  section  917 
of  the  Revised  Statutes,  therefore,  by  which  (re-enacting  to 
this  extent  the  provision  of  the  act  of  1812)  "the  supreme 
court  shall  have  power  to  prescribe,  from  time  to  time,  and 
in  any  manner  ;iot  inconsistent  with  any  law  of  the  United 
States,  the  forms  of  writs  and  other  process,"  this  court  has 
power  to  regulate  the  manner  of  proceeding,  or  "mode  of 
process,"  in  taking  bail  upon  writs  of  error  from  this  court  to 
the  circuit  court  or  district  court  in  civil  or  criminal  cases. 
Act  September  21,  1789,  c.  20,  §  33  (1  Stat.  91);  Kev.  St. 
§  1011;  Beers  v.  Haughton,  above  cited;  U.  S.  v.  Knight,  14 
Pet.  301;   U.  S.  v.  liundlett,  2  Curt.  41;  Fed.  Cas.  No.  16,208. 


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AMERICAN  CRIMINAL  REPORTS. 


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By  section  4  of  the  act  of  March  3,  1891  (cliapter  517),  the 
review  by  appeal,  writ  of  error,  or  otherwise,  of  judgments  of 
the  circuit  courts  or  district  courts,  can  be  had  only  in  this 
court,  or  in  the  circuit  courts  of  appeals,  according  to  the 
provisions  of  this  act.  By  section  5,  "  appeals  or  Avrits  of 
error  mav    be  taken   from"  the    circuit  courts  or   district 


may 


courts  "  direct  to  "  this  court  "  in  cases  of  conviction  of  a 
capital  or  otherwise  infamous  crime,"  as  well  as  in  certain 
other  classes  of  cases.  20  Stat.  827.  And  by  section  11,  "all 
provisions  of  law,  now  in  force,  regulating  the  methods  and 
system  of  review,  through  appeals  or  writs  of  error,  shall  reg- 
ulate the  methods  and  system  of  apjieals  and  writs  of  error 
provided  for  in  this  act  in  respect  of  the  circuit  courts  of  ap- 
peals, including  all  provisions  for  bonds  or  other  securities  to 
be  requiretl  and  taken  on  such  appeals  and  writs  of  error." 
26  Stat.  829.  But  as  to  the  metho<l3  and  system  of  review, 
through  appeals  or  writs  of  error,  including  the  citation,  su- 
persedeas and  bond  or  other  security  in  cases,  either  civil  or 
criminal,  brought  to  this  court  from  the  circuit  court  or  the 
district  court.  Congress  made  no  provision  in  this  act,  evi- 
dently considering  those  matters  to  be  covered  and  regulated 
by  the  provisions  of  earlier  statutes  forming  parts  of  one 
system. 

B}''  those  statutes,  upon  writs  of  error  from  this  court  to  the 
circuit  courts  or  district  courts  of  the  United  States,  as  well 
as  upon  writs  of  error  from  this  court  to  the  courts  of  the 
several  states,  any  justice  of  this  court — not  necessarily  the 
justice  assigned  to  the  circuit  in  which  the  other  court  is  held 
— may,  in  or  out  of  court,  allow  the  writ  of  error,  sign  the 
citation,  take  the  reciuisite  security  for  the  prosecution  of  the 
writ  of  error,  and  grant  a  supersedeas,  when  the  writ  of  error 
does  not  of  itself  operate  as  a  stay  of  proceedings,  as  it  does 
if  filed  and  security  given  within  sixty  days  after  the  judg- 
ment complained  of.  Rev.  St.,  §§  999,  1000,  1002,  1003,  1007; 
Saffe  V.  Railroad  Co..  96  U.  S.  712;  Iluflyins  v.  Kemp,  IS  How. 
530;  Pexujh  v.  Davis,  110  U.  S.  227;  4  Sup.  Ct.  17. 

In  Claasen's  Case,  140  TJ.  S.  200,  11  Sup.  Ct.  735,  it  was  ad- 
judged, upon  full  consideration,  that  by  the  act  of  1891  a  writ 
of  error  from  this  court  to  the  circuit  court,  in  the  case  of  a 
conviction  of  a  crime  infamous,  but  not  capital,  was  a  matter 
of  right,  without  giving  any  security;  that  the  citation  might 


HUDSON  V.  PARKER. 


97 


be  signed  by  a  justice  of  this  court,  under  Rev.  St.,  §  999;  that 
a  supersedeas  might  be  granted,  not  only  by  this  court,  under 
section  716,  but  by  a  justice  thereof,  under  section  1000;  and 
that,  if  the  justice  signing  the  citation  directed  that  it  shoukl 
operate  as  a  supersedeas,  the  supersedeas  might  be  obtained 
by  merely  serving  the  writ  within  the  time  prescribed  in  sec- 
tion 1007.  Mr.  Justice  Blatchford,  in  delivering  the  unanimous 
judgment  of  the  court,  accordingly  said:  "To  remove  all 
doubt  on  the  subject,  however,  in  future  cases,  we  have  adopted 
a  general  rule,  which  is  promulgated  as  rule  36  of  this  court, 
and  wliich  embraces  also  the  power  to  admit  the  defendant  to 
bail  after  the  citation  is  served."  UO  U.  S.  205,  207,  208;  11 
Sup.  Ct.  735. 

By  that  rule,  which  was  promulgated  May  11,  1S91,  the 
same  day  on  which  that  judgment  was  delivered,  "  an  appeal 
or  a  writ  of  error  from  a  circuit  court  or  a  district  court  direct 
to  this  court,"  in  the  cases  provided  for  in  sections  5  and  6  of 
the  act  of  1891,  "may  be  allowed,  in  term  time  or  in  vacation, 
by  any  justice  of  this  court,  or  by  any  circuit  judge  within  his 
circuit,  or  by  any  district  judge  within  his  district,  and  the 
proper  security  be  taken  and  the  citation  signed  by  him,  and 
he  may  also  grant  a  supersedeas  and  stay  of  execution  or  of 
proceedings,  pending  such  writ  of  error  or  appeal."  And  by 
paragraph  2  of  the  same  rule,  "  where  such  writ  of  error  is 
allowed  in  the  case  of  a  conviction  of  an  infamous  crime,  or  in 
any  other  criminal  case  in  which  it  will  lie  under  said  sections 
5  and  0,  the  circuit  court,  or  district  court,  or  any  justice  or 
judge  thereof,  shall  have  power,  after  the  citation  is  served,  to 
admit  the  accused  to  bail  in  such  amount  as  may  be  fixed." 
139  U.  S.  7  o;  11  Sup.  Ct.  4. 

This  court  can  not,  indeed,  by  rule,  enlarge  or  restrict  its 
own  inherent  jurisdiction  and  powers,  or  those  of  the  other 
courts  of  the  United  States,  or  of  a  justice  or  judge  of  either, 
under  the  constitution  and  laws  of  the  United  States.  Poult- 
ney  v.  City  of  La  Fayette^  12  Pet.  472;  The  St.  Lawrence,  1 
Black.  522,  520;  The  Lottawanna,  21  Wall.  558,  576,  679. 
Kor  has  it  assumed  to  do  so. 

On  the  contrary,  the  rule  in  question  was  adopted  by  this 
court  under  and  pursuant  to  its  power  to  make  rules,  pre- 
scribing the  forms  of  writs  and  process,  and  regulating  the 
practice  upon  appeals  or  writs  of  error;  and  was  so  framed  as 
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AMERICAN  CRIMINAL  REPORTS. 


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to  o-ive  effect  to  the  appellate  jurisdiction  conferred  by  the  act 
of  1801,  in  the  manner  most  consistent  with  the  provisions  of 
the  various  acts  of  Congress  concerning  the  same  matter. 

Tlicre  can  be  no  doubt,  therefore,  that  under  the  acts  of 
Cono-rcss,  the  decision  of  this  court  in  Claasen's  Case,  above 
oitec?,  and  the  first  paragraph  of  rule  36,  Mr.  Justice  White, 
although  not  the  justice  of  this  court  assigned  to  the  Eighth 
circuit,  was  authorized  to  allow  the  writ  of  error  to  operate 
as  a  supersedeas,  and  to  sign  the  citation. 

The  next  question  is  of  the  validity  of  his  order,  so  far  as 
regards  admitting '  the  prisoner  to  bail  pending  the  writ  of 
error. 

Recurring  once  more  to  rule  30,  and  to  the  decision  in 
Claasen's  Case,  which  were  considered  and  promulgated  to- 
gether, and  mutually  serve  to  explain  each  other,  the  matter 
stands  thus :  The  first  paragraph  of  the  rule,  embracing  all 
cases,  civil  or  criminal,  of  which  this  court  has  appellate  juris- 
diction under  the  act  of  1891,  provides  that  the  writ  of  error 
may  be  allowed  in  term  time  or  vacation,  "  and  the  proper 
security  be  taken,"  the  citation  signed,  and  a  supersedeas 
granted,  "  by  any  justice  of  this  court."  In  Claasen's  Case  it 
was  held  that,  in  the  case  of  an  infamous  crime,  the  writ  of 
error  was  a  matter  of  right,  and  that  no  security,  such  as  is 
necessary  in  a  civil  case,  was  required.  The  only  "  proper 
security,"  then,  in  a  criminal  case,  is  securit}'^  for  the  appear- 
ance of  a  prisoner  admitted  to  bail.  Within  the  very  terms  of 
the  rule,  therefore,  any  justice  of  this  court,  although  not 
assigned  to  the  particular  circuit,  would  seem  to  have  tlie 
power  to  permit  bail  to  be  taken.  But  the  power  rests  upon 
broader  grounds. 

The  statutes  of  the  United  States  have  been  framed  upon 
the  theory  that  a  person  accused  of  crime  si)all  not,  until  he 
has  been  finally  adjudged  guilty  in  the  court  of  last  resort,  be 
absolutely  compelled  to  undergo  imprisonment  or  punishment, 
but  may  be  admitted  to  bail,  not  only  after  arrest  and  before 
trial,  but  after  conviction,  and  pending  a  writ  of  error. 

The  statutes  as  to  bail  upon  arrest  and  before  trial  provide 
that  "  bail  may  be  admitted  "  upon  all  arrests  in  capital  cases, 
and  "  shall  be  admitted "  upon  all  arrests  in  other  criminal 
cases,  and  may  be  taken  in  capital  cases  by  this  court,  or  by  a 
justice  thereof,  or  by  a  circuit  court,  a  circuit  judge  or  a  dis- 


HUDSON  V.  PARKER. 


00 


ti'ict  judge,  and  in  other  criminal  cases  by  any  justice  or  judge 
of  the  United  States  or  other  magistrate  named.  Ilev.  St., 
§§  1014-1010. 

Under  the  act  of  March  3,  1879  (chapter  176),  upon  writs  of 
error  from  the  circuit  court  to  review  judgments  of  the  dis- 
trict court  upon  convictions  in  criminal  cases,  the  justice  of 
this  court  assigned  to  the  circuit  or  the  circuit  judge — that  is 
to  say,  any  member  of  the  appellate  court,  except  the  district 
judge,  presumably  the  judge   who   rendered  the  judgment 
below — might  allow  the  writ  to  operate  as  a  supersedeas,  and 
might  take  bail  for  the  defendant's  appearance  in  the  circuit 
court.    20  Stat.  35J:;   U.  S.  v.  Whittier,  11  Biss.  356;  13  Fed. 
53-1.    And  upon  a  writ  of  error  from  this  court  to  the  highest 
court  of  a  state  to  review  a  decision  against  a  right  claimed 
under  the  constitution  and  laws  of  the  United  States,  and 
which  lies  both  in  criminal  and  civil  cases,  and  operates  as  a 
supersedeas  under  the  same  circumstances  in  the  one  as  in  the 
other,  bail  may  be  taken  pending  the  writ  of  error;  but,  because 
of  the  relation  between  the  two  governments,  in  the  court  of 
the  state  only,  it  being  enacted  by  the  act  of  July  13, 1866  (cha|> 
ter  184,  §  69),  in  accordance  with  the  practice  previously  pre- 
vailing in  some  states,  that  the  plaintiff  in  error,  if  charged 
with  an  offense  bailable  by  the  laws  of  the  state,  should  not 
be  released  from  custody  until  final  judgment  upon  the  writ 
of  error,  "  or  until  a  bond,  with  sufficient  sureties,  in  a  reason- 
able sum,  as  ordered  and  approved  by  the  state  court,  shall 
be  given; "   or,  if  the  offense  was  not  so  bailable,  until  such 
linal  judgment.     14  Stat.  172;  Rev.  St.,  §  1017;  Cohcms  v.  Vir- 
(jinia,  6  Wheat.  204;    Worcester  v.   Georgia^  6  Pet.  515,  537, 
502,  507;  Bryan  v.  Bates,  12  Allen  201.     By  these  statutes, 
l)ail  after  conviction  was  provided  for  in  every  class  of  writs 
of  error  pending  in  the  courts  of  the  United  States  in  cases  of 
bailable  offenses,  for  when  they  were  enacted  no  writ  of  error 
lay  from  this  court  to  the  circuit  court  or  district  court  in 
any  criminal  case. 

By  the  act  of  February  6,  1889  (chapter  113,  §  6),  it  was 
enacted  that  final  judgments  of  any  court  of  the  United  States 
upon  conviction  of  a  crime  punishable  with  death  might,  upon 
the  application  of  the  defendant,  be  reviewed  by  this  court 
"  upon  a  writ  of  error,  under  such  rules  and  regulations  as 
said  court  may  prescribe  ";  and  that  every  such  writ  of  error 


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AMERICAN  CRIMINAL  REPORTS. 


should  "  be  allowed  as  of  right,  and  without  the  requirement 
of  any  security  for  the  ])rosecution  of  the  same,  or  for  costs,'' 
and  should  "  during  its  pendency  operate  as  a  stay  of  proceed- 
ings ui)on  the  judgment,  in  respect  of  which  it  is  sued  out," 
and  might  be  immediately  filed  in  this  court;  but  should  not 
be  sued  out  or  granted  except  upon  a  petition  filed  with  the 
clerk  of  the  court  in  which  the  trial  was  had,  during  the  same 
term,  or  within  sixty  days  after  its  expiration.     25  Stat.  650. 

Although  that  act  expressly  recognized  the  power  of  this 
court  to  make  rules  regulating  the  proceedings  upon  writs  of 
error  in  capital  cases,  yet,  as  by  its  terms  the  writ  was  to  be 
allowed  as  of  right,  without  requiring  any  security,  and  was 
of  itself  to  operate  as  a  stay  of  proceedings,  no  rule  upon  the 
subject  was  considered  necessary,  and  none  was  made  by  this 
court.  It  can  hardly  be  doubted,  however,  that  Congress  in- 
tended that  the  allowance  of  the  writ  of  error  and  stay  of 
proceedings,  while  suspending  the  execution  of  the  sentence, 
should  neither  have  the  effect  of  discharging  the  prisoner 
from  custody,  nor  of  preventing  his  being  admitted  to  bail, 
upon  sufficient  cause  shown,  pending  the  writ  of  error;  and, 
no  special  provision  upon  the  subject  of  bail  in  a  capital  case 
after  conviction  having  been  made  by  act  of  Congress  or  rule 
of  court,  it  would  seem  that  it  might  bo  taken  by  the  justice 
or  judge  who  allowed  the  writ  of  error. 

But,  however  it  may  be  in  a  capital  case,  it  is  quite  clear,  in 
view  of  all  the  legislation  on  the  subject  of  bail,  that  Congress 
must  have  intended  that  under  the  act  of  1891,  in  cases  of 
crimes  not  capital,  and  therefore  bailable  of  right  before  con- 
viction, bail  might  be  taken  upon  writ  of  error,  by  order  of 
the  proper  court,  justice  or  judge.  And  we  are  of  opinion 
that  any  justice  of  this  court,  having  port'er,  by  the  acts  of 
Congress,  to  allow  the  writ  of  error,  to  issue  the  citation,  to 
take  the  security  required  by  law,  and  to  grant  a  supersedeas, 
has  the  authority,  as  incidental  to  the  exercise  of  this  power, 
to  order  the  plaintiff  in  error  to  be  admitted  to  bail,  independ- 
ently of  any  rule  of  court  upon  the  subject;  and  that  this 
authority  is  recognized  in  the  first  paragraph  of  rule  36. 

Having  the  authority  to  order  bail  to  be  taken,  the  same 
justice  might  either  himself  approve  the  bail  bond,  or  he  might 
order  that  such  a  bond  should  be  taken  in  an  amount  fixed  by 
him;  the  form  of  the  bond  and  the  sufficiency  of  the  sureties 


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HUDSON  V.  PARKER. 


101 


to  be  passed  upon  by  the  court  whose  judgment  was  to  be 
reviewed,  or  by  a  judge  of  that  court;  or  he  might  leave  the 
whole  matter  of  bail  to  be  dealt  with  by  such  court  or  judge. 

Upon  a  writ  of  error  in  a  civil  case  the  requisite  security  is 
ordinarily  taken  by  the  justice  or  judge  who  allows  the  writ 
and  signs  the  citation.  Jerome  v.  McCarter,  21  Wall.  17.  But 
where  the  bond  taken  is  insufficient  in  law,  this  court,  in  the 
exercise  of  its  inherent  jurisdiction  as  a  court  of  error,  may 
direct  that  the  writ  be  dismissed,  unless  the  plaintiff  in  error 
gives  security  sufficient  in  this  respect,  to  betaken  and  approved 
by  any  justice  or  judge  who  is  authorized  to  allow  the  writ  of 
error  and  citation.  Catlett  v.  Brodie,  9  Wheat.  553,  555; 
O'ReiUy  V.  Ednngton,  90  U.  S.  724. 

This  court,  in  the  lawful  exercise  of  its  power  to  prescribe 
the  forms  of  process  and  to  regulate  the  practice  upon  writs 
of  error,  has  said,  in  paragraph  2  of  rule  30,  that  in  the  case 
of  a  conviction  of  an  infamous  crime  "  the  circuit  court,  or 
district  court,  or  any  justice  or  judge  thereof,  shall  have 
power,  after  the  citation  is  served,  to  admit  the  accused  to  bail 
in  such  amount  as  may  be  fixed." 

The  necessary  consequence  is  that  that  part  of  the  order  of 
Mr.  Justice  White  which  required  "  the  defendant  to  furnish 
bond  in  the  sum  of  five  thousand  dollars,  conditioned  accord- 
ing to  law,  subject  to  approval  by  the  district  judge,"  was  a 
valid  exercise  of  his  authority  to  order  bail,  in  an  amount  fixed 
by  him,  to  be  taken  by  the  district  judge,  leaving  the  form  of 
the  bond  and  the  sufficiency  of  the  sureties  to  be  passed  upon 
by  the  latter. 

A  writ  of  error,  allowed  out  of  court,  is  neither  considered 
as  brought,  even  for  the  purpose  of  computing  the  time  of  limi- 
tation of  suing  it  out,  nordoes  it  operate  as  a  supersedeas,  until 
it  has  been  filed  in  the  clerk's  office  of  the  court  to  which  it  is 
addressed.  Credit  Co.  v.  Arkansas  Cent.  Ry.  Co.,  128  U.  S.  258, 
200;  9  Sup.  Ct.  107,  and  cases  cited;  Foster  v.  Kansas.,  112  U.  S. 
201;  5  Sup.  Ct.  8,  97.  By  the  order  of  Mr.  Justice  White,  the 
allowance  of  the  writ  of  error,  to  operate  as  a  supersedeas,  was 
not  to  take  effect  until  the  approval  of  the  bond  by  the  district 
judge;  and  when  the  bond  Avas  presented  to  the  district  judge 
for  approval,  the  writ  of  error  had  been  filed  in  the  clerk's 
office  of  the  district  court,  and  the  citation  had  been  issued 
and  served.    The  objection  that  the  petitioner  could  only  be 


n 


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ri 


JIIIIK 


II 


!■: 


102 


AMERICAN  CRIMINAL  REPORTS. 


admittod    to  bail   after  citation    served,  has,   therefore,   no 
application  to  this  case. 

Tlie  discretion  of  a  judge,  indeed,  in  a  matter  intrusted  by  la  w 
to  his  judicial  detonnination,  can  not  be  controlled  by  writ  of 
niandainus.  But  if  ho  declines  to  e.xerciso  his  discretion,  or  t(» 
act  at  all,  when  it  is  his  duty  to  do  so,  a  writ  of  niandanuis 
may  be  issued  to  compel  him  to  act.  For  instance,  a  writ  ot 
mandamus  will  lie  to  compel  a  judge  to  settle  and  sign  a  bill 
of  exceptions,  although  not  to  control  his  discretion  as  to  the 
frame  of  the  bill.  Ec  parte  Bnulstrcet^ -^  Tet.  102;  Ex  jxirU- 
Cram,  5  Pet.  190;  In  re  Chateaiiyay  Ore  dh  Iron  Co.,  128  U.  S. 
.5-14,  557;  9  Sup.  Ct.  150.  See,  also,  Ex  parte  Mtyryan,  114  V . 
S.  174;  5  Sup.  Ct.  825;  Ec  parte  ParTccr,  120  U.  S.  737;  7  Sup. 
Ct.  707;  Ex  parte  Parhr,  131  U.  S.  221;  9  Sup.  Ct.  708;  Vir- 
yiniav.  Paul,  148  U.  S.  107,  123,  124;   13  Su)).  Ct.  530. 

If,  as  suggested  in  the  return,  the  petitioner  is  also  in  cus- 
tody under  a  subsecpient  conviction  for  another  offense,  that 
custody  will  not  be  affected  by  admitting  him  to  bail  in  this 
case. 

Were  the  question  here  only  as  to  what  persons  should  be 
accepted  as  sureties  on  the  bond,  or  as  to  their  sufficiency,  thei'o 
would  be  no  ground  for  issuing  a  writ  of  mandamus.  Ec 
parte  Taylor,  14  How.  3;  Ex  parte  Milwaukee  li.  Co.,  5  Wall. 
188.  But  in  the  case  before  us  the  district  judge  has  not  exer- 
cised anv  discretion  in  the  matter,  but  has  declined  to  act  at 
all,  and  has  refused  to  ai)i)rove  the  bond,  solely  because,  in  his 
own  words,  "it  is  found"  by  him  that  the  order  of  Mr.  Jus- 
tice White  was  made  without  authority  of  law,  and  that  tin; 
bond,  if  approved,  would  be  void. 

As  the  district  judge,  in  so  refusing  to  approve  the  bond, 
ap{)ears  to  have  acted  under  a  raisunder.^tanding  of  the  poweis 
of  this  court  and  of  its  justices,  and  of  his  own  duty  in  the 
premises,  and  as  in  his  return  he  expresses  his  readiness  to 
enforce  any  decision  of  this  court,  it  appears  to  us  to  be  more 
just  to  him,  as  well  as  more  consistent  with  the  maintenance  of 
the  rightful  authority  of  this  court,  to  sustain  this  petition,  and 
enable  bail  to  be  taken  before  liim  in  accordance  with  the 
order  heretofore  made,  than  to  dismiss  these  proceedings,  and 
to  deal  with  the  matter  over  his  head,  as  it  were,  bv  having  the 
petitioner  admitted  to  bail  by  this  court,  or  by  the  justice 
thereof  assigned  to  the  Eighth  circuit. 


HUDSON  V.  PARKER. 


103 


■\Ve  do  not  anticipate  tliat  there  will  be  any  occasion  for  the 
actual  issue  of  a  writ  of  peremptory  mandamus ;  but,  should 
it  become  necessary  to  do  so  in  order  to  secure  the  ri<jhts  of 
the  petitioner,  his  counsel  may  move  for  the  writ  at  any  time. 
The  i)resent  order  will  be : 

Petitioner  entitled  to  writ  of  mandamus  to  the  district  judge 
to  admit  the  petitioner  to  bail  on  his  giving  bond  in  pro^xir 
form,  and  with  suillcient  sureties. 

Mr.  Justice  Wiute  took  no  part  in  the  decision  of  this  case. 

llr.  JrsTicE  Bkewek  (dissenting).  I  am  unable  to  concur  in 
all  the  views  expressed  in  the  opinion  of  the  court.  Agreeing 
that  this  court  has  power  to  admit  to  bail  in  criminal  cases 
j)en(liiig  proceedings  in  error,  I  reach  this  conclusion  in  a  Uif- 
i'eront  way,  and  deduce  the  right  to  let  to  bail  solely  from  the 
grant  of  jurisdiction  over  the  ])roceedings  in  error.  As  said 
in  Fx  jmffe  Dijson,  25  Miss.  350-351) :  "  The  right  of  a  pris- 
oner to  bail,  after  conviction,  is  not  regulated  by  the  constitu- 
tion or  by  statute,  and  is  governed  by  the  rules  and  practice 
of  the  common  law.  It  seems  to  be  fully  and  clearly  estab- 
lished that  the  court  of  king's  bench  could  bail  in  all  cases 
whatsoever,  according  to  the  principles  of  the  common  law, 
the  action  of  that  court  not  being  controlled  by  the  various 
statutes  enacted  on  the  subject  of  bail,  but  regulated  and  gov- 
erned entirely  by  a  sound  judicial  discretion  on  the  subject. 
2  Hale,  r.  C.  129 ;  4  Co.  Inst.  71 ;  4  Com.  Dig.  G,  Tit.  '  F,'  3 ; 
1  Bac.  Abr.  483-493;  2  Hawk,  P.  C.  170;  Cowp.  R.  333.  In 
the  exercise  of  this  discretion,  the  court  in  some  instances  ad- 
mitted to  bail,  even  after  verdict,  in  cases  of  felony,  whenever 
a  special  motive  existed  to  induce  the  court  to  grant  it.  1  Bac. 
Abr.  489-490 ;  2  Hawk.  P.  C.  170.'- 

So,  when  jurisdiction  is  given  over  proceedings  in  error  in 
criminal  cases,  that  jurisdiction  carries  with  it,  by  ini])lication, 
the  power  to  make  all  orders  necessary  and  proper,  not  merely 
for  bringing  up  the  record,  but  also  for  the  custody  of  the  de- 
fendant pending  the  hearing  of  his  allegations  of  error.  But 
that  jurisdiction  is  vested  in  this  court  as  a  court,  and  not  in 
any  single  justice. 

There  have  been  five  separate  eractments  of  Congress  in 
reference  to  the  letting  to  bail  and  the  review  of  judgments  in 


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104 


AMERICAN  CRIIIINAL  REPORTS. 


ill 


criminal  cases:  First.  For  bail  before  trial.  Rev.  St.,  i?§  1014^ 
1016.  These  sections  nauie  tiio  judicial  otHcers  by  whom  bail 
may  bo  taken.  Second.  In  respect  to  judgments  in  criminal 
cases  in  the  state  courts,  brought  here  on  error.  Id.  g  1017. 
In  this  section  there  is  specilic  ])rovision  in  reference  to  tlie 
matter  of  hail.  Third.  The  act  of  March  3, 1871),  c,  17G,  pro- 
viding lor  a  review  by  the  circuit  court  of  judgments  in  the 
district  court  in  criminal  cases.  2(»  Stat.  354.  In  this  act  express 
authority  is  given  for  bail,  and  the  ollicers  named  by  whom 
such  bail  may  be  taken.  Fourth.  The  act  of  February  0,  lSSi>, 
c.  113,  25  Stat.  655,  granting  a  writ  of  error  from  this  couit 
to  bring  up  the  judgments  of  any  inferior  courts  of  the 
United  States  in  capital  cases.  Nothing  is  said  in  this  act  in 
resjiect  to  the  matter  of  bail,  but  the  allowance  of  the  writ  is 
made  to  operate  as  a  stay  of  proceedings.  Fifth.  The  act  of 
March  3,  1891,  c.  517,  20  Stat.  82(5,  the  Jict  under  which  this 
controversy  has  arisen,  Avhich  jnovides  for  a  review  by  this 
court  of  the  final  judgments  of  circuit  or  district  courts  in  cases 
of  "convictions  of  capital  or  otherwise  infamous  crimes."  In 
this  statute,  also,  there  is  no  mention  of  bail. 

I  fail  to  appreciate  the  argument  that,  because  Congress 
has  made  specific  provision  for  bail  in  criminal  cases  before 
conviction,  it  is  to  be  assumed  that  it  intended  that  bail  should 
likewise  be  allowed  in  all  cases  after  conviction ;  or  that,  be- 
cause in  two  statutes,  contemplating  review  of  judgments  in 
criminal  cases,  it  made  like  specific  provision  in  resjjcct  to  letting 
to  bail,  it  intended  the  same  grant  of  power  in  two  other  and 
later  statutes  granting  a  right  of  review,  in  whicii  it  said 
nothing  in  respect  to  bail.  In  other  words,  an  omission  ii\> 
^aronily  made  ex  industi'ia  implies  the  same  intention  as  an 
express  provision  fully  stated.  On  the  contrary,  as  I  under- 
stand it,  the  logic  of  all  differences  in  substantial  provisions 
between  earlier  and  later  statutes  is  indicative  of  difference, 
rather  than  identity  of  purpose. 

"  Indeed,  the  words  of  a  statute,  when  unambiguous,  are  the 
true  guide  to  the  legislative  will.  That  they  differ  from  the 
words  of  a  prior  statute  on  the  same  subject  is  an  intimation 
that  they  are  to  have  a  different,  and  not  the  same,  construc- 
tion."    liioh  V,  Keyser,  54  Pa.  St.  86,  89. 

'•  AVhere  the  later  of  two  acts  upon  limited  partnerships 
omitted  the  infliction,  prescribed  by  the  earlier,  of  a  penalty 


HUDSON  V.  PARKER. 


105 


for  tlio  omission  of  certain  m.ittors  required  by  both,  the 
court  s:ii(l :  '  Wo  must  prasumo  that  the  [earlier]  act  *  * 
*  and  the  decisions  under  it  were  well  known  to  the  law- 
iimlvcis  lit  the  time  the  [hiter]  act  *  *  *  was  passed.  The 
omission  to  prescribe  the  penalty  '*  *  *  is  good  reason 
for  concluding  that  no  such  liability  was  intended.'  "  End. 
Intorp.  St.  §  384 ;  Fliot  v.  Illmrod,  108  Pa.  St.  509,  573. 

Xeitlior  can  I  gather  from  the  legislation  authorizing  bail 
before  trial,  or  that  provision  for  bail  in  cases  brought  to  this 
court  from  conviction  in  state  tribunals,  or  that  authorizing 
bail  in  cases  taken  from  the  district  to  the  circuit  court,  the 
tnidcnco  of  a  settled  policy  on  the  part  of  Congress  that  bail 
should  be  allowed  in  all  cases,  capital  or  otherwise,  brought 
hero  on  error  from  a  final  judgment  of  the  circuit  or  district 
court.  Indeed,  with  reference  to  this  matter  of  policy,  it  was 
\vc\\  said  in  ILuhhm  v.  The  Collector,  5  Wall.  107,  111 :  "  What 
is  termed  the  'policy' of  the  government  with  reference  to 
any  particular  legislation  is  generally  a  very  uncertain  thing, 
upon  wliich  all  sorts  of  opinions,  each  variant  from  tlie  other, 
may  be  formed  by  different  persons.  It  is  a  ground  much 
too  unstable  upon  which  to  rest  the  judgment  of  the  court  in 
the  interpretation  of  statutes." 

Nevertlieless,  I  agree  with  the  majority  that  this  court  has 
power  to  i)rescribe  by  rule  all  matters  of  detail  with  respect  to 
procedure  which  are  not  in  terms  fixed  or  denied  b}'  statute. 
It  has  exercised  such  power,  and  passed  a  rule  concerning  the 
letting  to  bail  in  which,  as  I  have  hitherto  supposed,  it  deter- 
mined the  whole  matter. 

It  is  idle  to  say  that  there  is  no  difference  between  the 
supersedeas  of  a  judgment  and  the  letting  to  bail.  When  a 
sentence  of  death  is  stayed  by  this  court,  it  does  not  follow, 
as  a  matter  of  course,  that  the  party  sentenced  is  to  bo  dis- 
charg'^d  from  custody,  and  permitted  to  go  where  he  pleases ; 
and  the  same  is  true  in  case  of  a  sentence  to  confinement  and 
hard  labor  in  the  penitentiary.  The  stay  of  execution  simply 
prevents  the  hanging  or  the  removal  of  the  party  to  the  peni- 
tentiary. But  it  is  unnecessary,  in  view  of  the  language  of 
this  court,  to  make  any  argument  to  show  that  the  two  things 
are  different.  In  lie  Glaasen,  140  U.  S.  200,  208,  11  Sup.  Ct. 
735,  the  court  said :  "  We  hold,  therefore,  that  the  allowance 
of  the  supersedeas  in  the  present  case  was  proper,  and  we  deny 


frffw 


106 


AMERICAN  CRIMINAL  REPORTS. 


the  motion  to  set  it  aside.  To  remove  all  doubt  on  the  sub- 
ject, however,  in  future  cases,  we  have  adopted  a  general  rule, 
which  is  promulgated  as  rule  36  of  this  court  (see  139  U.  S. 
706  11  Sup.  Ot.  4)  and  which  embraces  also  the  power  to 
admit  the  defendant  to  bail  after  the  citation  served." 

The  rule  there  indicated  was  put  into  two  paragraphs,  one 
of  which  provides,  among  other  things,  for  a  supersedeas,  and 
the  other  for  admitting  to  bail.  This  court,  then,  certainly 
understood  that  there  ^\as  a  difference  between  the  two,  and 
did  not  add  a  second  ^-aragraph  to  regulate  a  matter  which 
was  fully  regulated  by  the  first.  It  is  also  true  that  in  the 
first  paragraph  provision  is  made  for  the  taking  of  security, 
but  taking  security  is  not  technically  letting  to  bail,  and  the 
provision  in  reference  to  security  evidently  refers  to  those 
cases  in  which  the  sentence  of  the  trial  court  directs  the  pay- 
ment of  a  fine.  In  respect  to  such  a  sentence,  "  security "  is 
an  apt  and  suitable  word. 

Now,  tlie  idea  of  a  rule  is  that  it  makes  full  provision  for 
everything  wuthin  the  scope  of  its  general  purpose ;  and  when 
this  court,  by  the  second  paragraph,  named  certain  judicial 
oiUcers  as  the  ones  to  admit  to  bail,  it  was  a  declaration — First, 
that  this  coui't  had  power  to  pass  such  a  rule ;  and,  second, 
upon  the  principle,  ^'■Expressio  uniiis  cxclusio  alierius,'"  that  it 
had  named  therein  all  the  judicial  officers  who  were  to  exer- 
cise that  particular  authority.  There  is  in  its  language  noth- 
ing to  suggest  that  it  was  intended  to  be  cumulative,  or  that, 
in  addition  to  certain  officers,  given  by  law  the  right  to  admit 
to  bail,  otlier  officers  were  by  it  given  the  like  power.  It  is 
well  to  note  the  very  words  of  the  rule : 

"(1)  An  appeal  or  a  writ  of  error  from  a  circuit  court  or  a 
district  court  direct  to  this  court,  in  the  cases  provided  for  in 
sections  5  and  6  of  the  act  entitled  'An  act  to  establish  circuit 
courts  of  appeals,  and  to  define  and  regulate  in  certain  cases 
the  jurisdiction  of  the  courts  of  the  United  States,  and  for 
other  purposes,'  approved  March  3,  1S91,  may  be  allowed,  in 
term  time  or  in  vacation,  by  any  justice  of  this  court,  or  by 
any  circuit  judge  within  his  circuit,  or  by  any  district  judge 
within  his  district,  and  the  proper  security  be  taken  and  the 
citation  signed  by  him,  and  he  may  also  grant  a  supersedeas  and 
stay  of  execution  or  of  proceedings,  pending  such  writ  of  error 
or  appeal. 


HUDSON  V.  PARKER. 


10^ 


(•  -m 


"(2)  Where  such  writ  of  error  is  allowed  in  the  case  of  a 
conviction  ol'  an  infamous  crime,  or  in  any  other  criminal  case 
in  wliicli  it  will  lie  umler  said  sections  5  and  6,  the  circuit 
court  or  district  court,  or  any  justice  or  judge  thereof,  shall 
have  power,  after  the  citation  is  served,  to  admit  the  accused 
to  l)ail  in  such  amount  as  may  be  fixed." 

No  one  can  read  this  rule,  and  particularly  the  second  i)ara- 
graph,  without  understanding  that  by  it  this  court  had  named 
tlie  officers,  and  the  only  officers,  who  should  have  the 
power  to  admit  to  bail.  Certainly  such  has  been  the  under- 
standing of  bench  and  bar  through  the  country. 

In  I'.  S.  V.  Simmons,  47  Fed.  723,  Judge  Benedict  says : 
"  Tiio  rules  of  the  Supreme  Court  of  the  United  States  (rule  30) 
permit  persons  convicted,  when  they  appeal  to  the  Supreme 
Court  of  the  United  States,  to  be  admitted  to  bail,  but  leave 
the  (juostion  of  admitting  to  bail  to  the  discretion  of  the  court 
below." 

Can  there  be  any  doubt  as  to  the  meaning  of  the  second 
paragraph  ?  It  says,  "  The  circuit  court  or  district  court  or 
any  justice  or  judge  thereof."  Surely,  that  does  not  mean 
any  circuit  court  or  any  district  court,  or  any  justice  or  any 
judge  thereof,  but  the  court  in  which  the  case  was  tried.  If 
it  was  intended,  by  the  second  paragraph,  to  give  to  any  jus- 
tice of  this  court  the  power  to  admit  to  bail,  wh}'  was  not  the 
hmgnageof  the  first  paragra])h  repeated,  or  a  mere  reference 
made  to  the  words  of  description  therein?  Why  was  the 
careful  language  used,  which  unquestionabl}'  limits  to  the 
judicial  officers  of  the  circuit  in  which  the  case  was  tried  ?  It 
says,  "  any  justice  or  judge  thereof."  Section  605,  Rev.  St., 
contains  these  words :  "  The  words  '  circuit  justice '  and  '  jus- 
tice of  a  circuit,'  when  used  in  this  title,  shall  be  understood 
to  designate  the  justice  of  the  supreme  court  who  is  allotted 
to  any  circuit."  Did  not  this  court,  when  it  framed  this  para- 
graph, understand  what  the  statute  had  declared  to  be  the 
meaning  of  th  words  "justices  of  a  circuit?"  If  the  power 
belonged  to  all  the  justices  of  the  court,  either  independently 
ol  the  rule  or  by  virtue  of  the  first  paragraph,  why,  in  this 
second  paragraph,  mention  the  justice  of  the  circuit  ?  I  con- 
fess my  inability  to  see  any  reason  therefor. 

Hence,  I  am  forced  to  the  conclusion,  that,  if  the  order  of 
Mr.  Justice  White,  who  w^s  not  the  justice  of  the  Eighth  cir- 


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AMERICAN  CRIMINAL  REPORTS. 


cuit,  is  to  be  construed  as  a  command  in  respect  to  bail,  it  was 
beyond  the  scope  of  tiie  rule.  I  think,  however — and  in  this 
I  must  also  differ  from  the  majority — that,  reasonably  con- 
strued, it  may  be  taken  as  a  supersedeas,  the  power  to  grant 
which  is  unquestioned,  and  a  reference  of  the  matter  of  bail  to 
the  trial  judge. 

Indeed,  the  conclusion  reached  by  the  court  seems  to  work 
out  this  curious  result:  that  one  judge,  by  virtue  of  his  power 
to  allow  a  writ  of  error,  can  command  another  judge  to  per- 
form the  ministerial  duty  of  approving  a  bail  bond.  Suppose 
a  criminal  case  is  tried  by  a  justice  of  this  court  while  holding 
the  circuit  court,  can  it  be  that  the  circuit  judge,  exercising 
the  power  given  to  him  by  the  first  paragraph  of  this  rule,  can 
allow  a  writ  of  error,  and  couple  with  it  a  command  to  the 
circuit  justice  to  approve  a  bail  bond  against  his  judgment  of 
the  ])ropriety  of  letting  to  bail,  and  such  command  be  enforced 
by  a  writ  of  mandamus  from  this  court  ?  I  submit  the  query 
without  further  comment. 

I  am  authorized  to  say  that  Mr.  Justice  Brown  concurs  in 
these  views. 


State  v,  Myers. 
(54  Kan.  206.) 


Bank  Officer  Receiving  Deposits  When  Bank  is  Insolvent:   Record  on 
appeal— Certificate  of  trial  judge— Evidence. 

1.  Where  a  record  is  filed  in  this  court,  consisting  of  two  volumes,  marked 

"  1 "  and  "  2,"  puriwrting  to  contain  the  bill  of  exceptions  in  the  case, 
certified  to  and  authenticated  by  the  trial  judge,  who  states  that  the 
bill  of  exceptions  is  contained  "  in  two  volumes,  numbered  '  1 '  and 
'  2,' "  in  the  absence  of  any  proof  to  the  contrary,  such  volumes  will  be 
considered  as  containing  the  bill  of  exceptions  so  referred  to. 

2.  Where  the  complaint  and  warrant  in  a  criminal  case  state  in  general 

language  the  offense  charged  against  the  defendant,  and  such  de- 
fendant waives  a  preliminary  examination  thereon,  he  can  not  be  heard, 
after  an  information  has  been  filed,  setting  forth  fully  and  siwcifically 
the  offense  attempted  to  be  charged  in  the  warrant,  to  say  that  lie  has 
had  no  preliminary  examination. 
8.  An  information,  under  the  provisions  of  section  10,  C.  43,  Sess.  Laws, 


STATE  V.  MYERS. 


109 


1801,  charging  an  officer  of  a  bank  with  knowingly  accepting  deposits 
whi'H  his  bank  is  insolvent,  need  not  allege  that  loss  occurred  to  any  one 
by  reason  of  such  deposit. 

4.  In  the  prosecution  of  an  officer  of  a  bank  for  knowingly  violating  the 

provisions  of  section  16,  C.  43,  Sess.  Laws,  1891,  it  is  error  to  permit  a 
witnetis  upon  the  trial  to  give  his  opinion  as  to  the  solvency  or  insolv- 
ency of  the  bank  at  the  time  of  the  alleged  deposit.  The  actual  facts 
concerning  the  condition  of  the  bank  at  the  time  of  the  deposit  may  be 
proved,  but  opinion  evidence  thereof  is  not  admissible. 

5.  The  law  of  the  state  does  not  require  a  bank  receiving  deposits  and 

transacting  a  banking  business  to  retain  on  hand  all  of  the  money  of  its 
depositors.  The  bank  is  not  generally  expected  to  be  able  to  pay  every 
de])ositor  at  once,  but,  if  solvent,  it  must  be  able  to  pay  or  provide  for 
its  deposits  and  other  debts  as  they  are  demanded  in  the  usual  course 
of  business. 

6.  In  a  criminal   prosecution  under  section  16,  C.  43,  Sess.  Laws,  1891, 

against  an  officer  of  a  bank  for  knowingly  receiving  deposits  when  his 
bank  is  insolvent,  the  capital  stock  and  surplus  fund  are  not  to  be  con- 
sidered as  liabilities  tending  to  show  such  insolvency.  The  capital  and 
surplus  of  a  bank  are  its  resources,  which  may  be  used  to  pay  its  de- 
positoi-s  and  other  creditors  when  there  has  been  loss,  by  loans  or  other- 
wise. 

7.  In  a  criminal  prosecution  under  section  16,  C.  43,  Sess.  Laws,  1891,  a 

person  holding  the  office  of  director  and  vice-president  of  the  bank  is 
not  conclusively  presumed  to  know  everything  of  importance  that  oc- 
curs in  the  bank,  including  its  condition,  in  the  absence  of  actual  notice 
of  knowledge  thereof. 

Appeal  from  District  Court,  Kiowa  County;  "W.  O.  Bashore, 
Judge. 

C.  W.  Myers  was  convicted  of  receiving  deposits,  knowing 
tiie  bank  was  insolvent,  and  appeals.     Keversed. 


On  tlie  24th  day  of  April,  1S9-1,  there  was  filed  in  the  office 
of  R.  A.  Dowell,  justice  of  the  peace  in  and  for  Kiowa  count}--, 
a  warrant  for  the  arrest  of  C.  W.  Myers,  the  defendant.  The 
body  of  the  warrant  was  as  follows : 

"  It  appearing  tiiat  there  are  reasonable  grounds  for  believ- 
ing tbat  at  the  county  of  Kiowa,  and  State  of  Kansas,  one 
C.  W.  Myers,  as  the  vice  president,  manager,  and  officer  of  the 
bank  of  Greensburg,  of  Greensburg,  Kiowa  county,  Kansas, 
has  committed  the  offense  of  feloniously  and  unlawfully  receiv- 
ing and  accepting,  on  deposit  in  said  bank,  money,  bank  bills, 
notes,  United  States  treasury  notes,  gold  certificates,  silver  cer- 
tificates, currency,  and  other  notes,  bills,  drafts,  gold  coin,  and 
silver  coin,  which  then  circulated  as  money,  after  said  bank 


wms 


110 


AMERICAN  CRIMINAL  REPORTS. 


WHS  known  by  said  C.  W.  Myers  to  be  insolvent,  and  of  being 
accessory  to  conniving  at  and  permitting  such  deposits  in  said 
bank  after  the  same  became  and  was  insolvent,  you  are  com- 
manded forthwith  to  arrest  C.  W.  Myers,  and  bring  him 
before  some  magistrate  of  the  county  of  Kiowa,  to  be  dealt 
with  according  to  law." 

After  the  defendant  was  arrested  and  brought  before  tl)o 
justice  of  the  peace,  he  moved  to  quash  the  Avarrant  for  the  rea- 
son that  it  did  not  state  facts  sufficient  to  constitute  a  public 
offense,  and  because  it  was  indefinite  and  uncertain  in  not 
informing  the  defendant  from  wliom  the  deposit  was  received, 
nor  who  was  the  owner  of  the  deposit,  and  because  it  failed  to 
state  the  value  of  said  deposit,  and  for  other  reasons,  which 
motion  was  overruled.  On  motion  of  Hon.  John  T.  Little, 
attorney-general,  the  warrant  was  amended  to  read,  "known 
by  the  said  C.  W.  Myers  to  bo;"  whereupon  defendant  waived 
a  preliminary  examination  upon  the  warrant,  and  was  bound 
over  to  appear  to  the  district  court.  After  the  waiver  of  the 
preliminary  examination  by  the  defendant,  an  information  was 
filed,  on  the  4th  of  June,  189-i,  in  the  district  court,  con- 
taining two  counts — one  charging  the  defendant  with  having, 
on  the  23d  day  of  November,  1893,  received  a  deposit  from  J. 
D.  Mitchell  of  the  value  of  §388,  knowing  the  bank  to  be 
insolvent;  and  the  other  count  charging  him  with  being  acces- 
sory to  and  permitting  the  receiving  on  deposit  in  said  liank 
from  J.  D.  Mitchell,  on  the  23d  day  of  November,  1893,  of 
S3S8.  On  the  18th  day  of  June,  1894,  the  defendant  filed  a  plea 
in  abatement  to  each  of  these  counts.  This  plea  in  abate- 
ment was  verified,  and  the  state,  entering  no  denial  of  the 
allegation  that  defendant  was  not  a  fugitive  from  justice, 
stood  upon  the  record,  and  the  court  overruled  the  plea  in 
abatement.  The  defendant  thereupon  filed  a  motion  to  quash 
the  information,  which  was  overruled.  The  case  then  pro- 
ceeded to  trial.  On  the  10th  day  of  July,  1894,  the  jury  re- 
turned a  verdict  against  the  defendant  of  guilty  as  charged  in 
the  second  count  of  the  information.  Subsequently,  motions 
for  a  new  trial  were  filed,  and  in  arrest  of  judgment.  These 
were  overruled  by  the  court.  On  the  25th  day  of  July,  1894, 
the  defendant  was  sentenced  as  follows :  "  It  is  the  sentence 
of  the  court  that  you,  C.  W.  ]S[yers,  be  remanded  to  the  cus- 
tody of  the  sheriff  of  Kiowa  county,  Kansas,  and  that,  at  such 


m 


STATE  V.  MYERS. 


Ill 


reasonable  time  as  may  be  convenient  for  him,  you  be  by  him 
conveved  to  the  penitentiary  of  the  State  of  Kansas,  in  the  city 
of  l.ansing,  and  that  you  be  there  confined  at  hard  labor  for 
the  period  of  five  years,  and  that  you  pay  the  costs  of  thi? 
case  herein,  taxed  at  $1,125.15."     The  defendant  appeals. 

Z.  3L  Day  and  Ady,  Peters  c§  Nicholson,  for  ap]>ellant. 
John  T.  Little,  Attorney-General,  E.  A.  Fisher,  and  Wm. 
JlcK  Ifilliyan,  for  the  State. 

IIoRTON,  (J.  J.  (after  stating  the  facts).  A  preliminary  ques- 
tion is  presented.  Upon  the  part  of  the  state,  an  objection  is 
urged  against  the  consideration  by  this  court  of  the  errors 
assigned,  upon  the  ground  that  the  bill  of  exceptions  is  not 
properly  authenticated,  and  is  also  incomplete  and  imperfect 
on  its  face.  The  record  is  contained  in  two  separate  volumes, 
marked  volumes  "1"  and  "2."  The  record  was  filed  in  this 
court  on  August  4,  1894.  The  certificate  and  authentication  to 
the  bill  of  exceptions  signed  by  the  trial  judge  states  that  the 
bill  of  exceptions  is  "  in  two  volumes,  numbered  1  and  2." 
The  certificate  of  the  district  clerk, attached  at  theend  of  volume 
2  of  the  record,  states  "  that  the  within  and  foregoing  is  a  full, 
true,  correct,  and  complete  copy  of  the  original  bill  of  excep- 
tions in  the  case  of  The  State  of  Kansas  v.  O.  W.  Myers,  as  ap- 
pears of  record  and  now  on  file  in  my  office,  and  that  said  bill 
of  exceptions  contains  full,  true,  and  correct  copies  of  *  *  * 
all  the  orders,  pleadings,  process,  and  proceedings  in  said  cause, 
as  the  same  appear,  respectively,  on  file  in  my  office."  This 
certificate  is  sufficient,  within  the  authority  of  Zauer  v.  Liv- 
ings, 24  Kan.  275.  In  the  absence  of  any  proof  that  the  two 
volumes  should  not  be  considered  together  as  certified  to  by 
the  trial  judge,  we  may  regard  the  record  presented  as  con- 
tained in  the  two  volumes  filed,  and  as  sufficiently  authenti- 
cated.   The  challenge  of  the  record  will  be  overruled. 

2.  The  trial  court  committed  no  error  in  overruling  the  plea 
in  abatement.  One  of  the  purposes  of  a  preliminary  examina- 
tion is  to  give  the  defendant  a  reasonable  notice  of  the  nature 
and  character  of  the  offense  charged  against  him,  and  "the 
state  should  in  all  cases  give  the  defendant  such  notice  by  a 
proffered  preliminary  examination,  unless  he  waives  the  same 
or  is  a  fugitive  from  justice."    Cr.  Code,  §  69.    The  defendant 


t'i: 


^1 


^  1 


h  M 


112 


AMERICAN  CRIMINAL  REPORTS. 


wos  not  a  fugitive  from  justice,  but  he  waived  the  profTcml 
preliminary  examination.  The  complaint  and  warrant  upon 
which  it  was  issued  stated,  in  general  language,  the  offense 
alleo-ed.  We  think  that  "  the  defendant  should  take  notice 
from  the  evidence  introduced  by  the  state  on  the  preliminary 
examination,  as  well  as  from  the  papers  in  the  case,  of  the 
nature  and  character  of  the  olTense  charged  against  him."  As 
the  defendant  expressly  waived  the  preliminary  examination, 
he  ca  1  noi  be  heard  to  say,  by  a  plea  in  abatement,  that  he 

should  bL  tir  ,ed  because  he  had  no  preliminary  examina- 
tion prior  to  the  dling  of  the  information  against  him.  Sec- 
tion 09,  Ci\  (Jode;  State  v.  Smith,  13  Kau.  296;  State  v.  Bailey, 

32  Id.  83. 

3.  There  was  no  err.)r  o  i  the  part  of  the  trial  court  in  re- 
fusino-  to  compel  the  state  to  elect  upon  which  one  of  the 
counts  it  would  proceed  to  trial.  The  election  in  such  cases  as 
this  rests  in  the  sound  judicial  discretion  of  the  trial  court. 
State  V.  Ilodf/esy  45  Kan.  389;  State  v.  Zimmej'man,  47  Id.  242. 

4.  It  is  insisteu  that  the  information  does  not  show  the  de- 
fendant took  the  deposit  with  the  intent  of  defrauding,  and 
that  it  does  not  show  that  anybody  has  been  defrauded  or  has 
suffered  a  loss.  This  was  a  prosecution  under  section  1 6,  c. 
43,  Sess.  Laws  1891,  and  not  under  section  79a  of  the  Crimes 
Act  ^Gen.  St.  1889;  Sess.  Laws  1879,  c.  48,  §  1).  Under  the 
latter  statute  no  prosecution  could  be  maintained  unless  "  loss 
occurred  by  reason  of  such  deposit."  Section  16,  c.  43,  Sess. 
Laws  1891,  omits  this  provision.  Therefore,  the  exceptions 
taken  to  the  information  are  not  tenable.  Upon  the  trial, 
Breidenthal,  the  bank  commissioner,  was  asked :  "  State  in 
what  condition  you  found  the  bank,  and  what  you  did  in  con- 
nection with  that,  as  to  the  condition  of  the  assets  and  lia- 
bilities, and  the  entire  condition  of  the  bank  at  that  time." 
The  witness  answered  as  follows:  That's  a  little  difficult  for 
me  to  answer  without  going  over  the  whole  thing."  Then 
the  following  question  was  asked :  "  I  will  try  to  make  that 
question  broad  enough  so  you  can  answer  it.  Everything  you 
did,  and  every  person  you  have  examined,  any  witness  you 
examined,  by  which  you  based  your  conclusions  of  the  condi- 
tion of  the  bank;  everything  you  did —  I  want  that  question 
to  cover  everything  you  did  before  you  took  possession  of  the 
bank."    This  witness  was  permitted  to  state  "  that  he  found 


STATE  V.  MYERS. 


113 


the  bank  affairs  generally  and  particularly  in  very  bad  condi- 
tion, and  that  an  item  of  §3,000,  according  to  the  statement  of 
the  cashier,  was  absolutely  worthless."  This  evidence  was 
objected  to  by  tlie  defendant,  and  a  motion  was  made  to  strike 
it  out.  This  was  overruled,  and  exceptions  taken.  Other 
similar  evidence  was  received  against  the  exceptions  of  the 
defendant.  It  was  competent,  upon  the  part  of  the  state,  to 
show  that  the  bank  commissioner  took  possession  of  the  bank, 
together  with  its  assets,  and  the  date  thereof;  but  his  evidence 
should  have  been  limited  to  facts  within  his  own  knowl- 
edge, not  what  he  was  informed  by  others,  unless  the  defend 
ant  was  present  at  the  time  of  the  conversations.  The  reports 
of  the  bank  to  the  commissioner  of  its  condition,  made  under 
the  direction  of  the  defendant  or  with  his  knowledge,  were 
competent  for  the  consideration  of  the  jury.  If  Breidenthal, 
or  other  witnesses  competent  so  to  do,  had  inspected  the 
books,  accounts,  and  papers  of  the  bank,  wiiile  they  could  not 
give  evidence  of  their  particular  contents,  they  might  have  been 
allowed  to  speak  of  the  general  balances  of  the  bank  with  parties 
dealing  with  the  bank,  without  producing  the  books,  accounts 
and  papers  before  the  jury,  if  it  were  impossible  or  impracti- 
cable so  to  do.  1  Greenl.  Ev.,  §  93.  "  When  books  and  docu- 
ments introduced  in  evidonce  at  the  trial  are  multifarious  and 
voluminous,  and  of  such  a  character  as  to  render  it  difficult 
for  the  jury  to  comprehend  material  facts  without  schedules 
containing  abstracts  thereof,  it  is  within  the  discretion  of  the 
presiding  judge  to  admit  such  schedules,  verified  by  the  testi- 
mony of  the  persons  by  whom  they  were  prepared,  allowing 
the  adverse  party  an  opportunity  to  examine  them  before  the 
case  is  submitted  to  the  jury."  liailroad  Corp.  v.  Dana,  1 
Gray,  83,  104-.  But  the  opinion  of  the  witness  whether  the 
bank  was  insolvent  at  the  time  of  the  deposit  alleged  in  the 
information  ought  not  to  have  been  received.  Brundred  v. 
Mnchine  Co.,  4  N.  J.  Eq.  295.  Facts,  and  not  opinions,  are  lis- 
tened to  by  judicial  tribunals.  The  jury  are  called  upon  to  form 
their  conclusions  upon  the  issues  involved  from  the  facts  before 
them,  and  not  upon  the  opinions  which  may  be  entertained 
upon  the  subject  of  controversy,  except  in  exceptional  cases. 

5.    Upon  the  trial  the  defendant  asked  the  court  to  instruct 
the  jury  as  follows : 

"  (13)  The  law  of  this  state  does  not  require  a  bank  to  retain 
on  hand  all  of  the  money  of  its  depositors. 


1    I  i;, 


U 


■  ".-T^-FWIL"'???!*^ 


i!i 


114 


AMERICAN  CRIMINAL  REPORTS. 


"(14)  Insolvency  is  that  state  of  a  bank  through  wliicli 
from  any  cause  it  is  unable  to  pay  its  debts  in  the  ordinary  or 
usual  course  of  business.  It  is  not  expected  to  be  able  at 
once  to  ])ay  every  debt  it  owes,  but  it  must  be  able  to 
pay  or  to  provide  for  its  debts  as  they  fall  due  in  the 
usual  course  of  business. 

"  (15)  '  Insolvency,'  in  the  ordinary  acceptation  of  the  term, 
when  applied  to  a  bank,  means  inability  to  meet  liabilities 
in  the  usual  course  of  business." 

The  court  refused  to  give  these,  but  instructed  the  jury  as 
follows : 

"A  bank,  like  an  individual,  is  insolvent  when  it  is  unable  to 
pay  its  debts.  '  Insolvency '  means  a  present  general  inability 
to  answer,  in  the  course  of  business,  its  liabilities  existing  and 
capable  of  being  enforced.  A  bank  is  insolvent  when  it  is 
unable  to  meet  its  liabilities  as  they  become  due  in  the  ordi- 
nary course  of  business.  It  does  not  necessarily  follow  that  a 
bank  is  solvent  when  its  assets  are  equal  to,  or  in  excess  of,  its 
liabilities;  but,  in  order  to  be  solvent,  its  resources  must  be 
equal  in  value  to  its  liabilities,  and  be  of  such  a  character  as  to 
be  available  at  the  command  of  the  bank,  to  be  used  in  paying 
its  liabilities  past  due,  whenever  the  same  may  be  demanded 
in  the  ordinary  course  of  business;  and  all  debts  owing  by  the 
bank  to  any  and  all  persons  whomsoever,  including  its  capital 
stock,  surplus  fund,  and  unpaid  salaries  of  its  officers,  are  its 
liabilities,  whiio  all  debts  owing  to  the  bank,  together  with  all 
property  owned  by  it,  constitute  its  assets  or  resources." 

The  instructions  requested  ought  to  have  been  given,  and 
the  giving  of  the  instructions  referred  to  rendered  this  error 
more  serious.  It  appears  from  the  facts  disclosed  upon  the 
trial  that  C.  W.  Myers  was  the  vice  president  and  general 
manager  of  the  Bank  of  Greensburg,  and  that  on  the  23d  day 
of  November,  1893,  W.  L.  Henderson  presented  to  M.  A.  Nel- 
son, the  cashier  of  the  bank,  a  check  drawn  by  a  commission 
firm  in  the  city  of  Wichita  upon  the  Sedgwick  County  Bank  of 
Wichita,  Kan.,  payable  to  the  order  of  W.  L.  Henderson,  which 
check  was  indorsed  by  Henderson,  and  at  his  request  the 
amount  of  the  same,  viz.,  |3S8,  was  placed  to  the  credit  of  J.  D. 
Mitchell.  The  defendant  was  in  Kingman,  distant  about  100 
miles  from  Greensburg,  on  the  day  when  this  check  was  pre- 
sented and  received.    The  amount  of  the  check  was  entered  to 


f-'% 


STATE  V.  MYERS. 


115 


the  credit  of  J.  D.  Mitchell.    Afterward,  on  the  22(1  day  of 
December,  1893,  J.  W.  Breidenthal,  the  bank  commissioner  for 
the  state,  closed  the  bank,  and  took   possession  of  its  books, 
papers,  moneys,  and  assets,  and  afterward,  about  the  15th  day 
of  February,  1894,  T.  C.  Eberle  was  appointed  by  the  judge 
of  the  District  Court  of  Kiowa  County  as  receiver  of  the  bank, 
and  at  or  about  that  time  took  possession  of  the  books  and 
assets  of  the  same,  and  ever  since  has  continued  to  be  the  re- 
ceiver.   At  the  time  the  bank  was  closed  by  the  commissioner, 
it  had  no  paper  that  had  gone  to  protest,  and  had  not  refused 
the  payment  of  any  checks  or  drafts  drawn  upon  it.     There 
was  also  §14,500.03  of  cash  in  the  bank  at  that  time.     The  de- 
fendant claimed  that  the  liabilities  of  the  bank,  not  including 
the  capital  stock  and  undivided   profits,  were  873,089.12,  and 
that  the  assets  of  the  bank  were  $103,518.20.     On  the  part  of 
the  state  it  was  claimed   that   the  value  of  the  assets  was 
.$53,898.60  only,  and  that  the  actual  liabilities,  including  cap- 
ital stock,  were  over  $100,000.     "Whether  the  Bank  of  Greens- 
burg  was  insolvent  or  not  when  the  deposit  for  J.  D.  Mitchell 
was  received,  on  the  23d  of  November,  1893,  was  an  important 
fact,  to  be  decided  by  the  jury,  and  the  evidence  was  conflict- 
ing.   In  a  criminal   prosecution  under  Sec.  16,  c.  43,  Sess. 
Laws,  1891,  against  an  officer  of  a  bank  for  knowingly  receiving 
de])osits  when   his  bank  is  insolvent,   the  capital  stock  and 
surplus  fund  can  not  be  considered  as  liabilities  or  debts  in  de- 
termining the  insolvency;  otherwise,  the  greater  the  capital 
of  the  bank,  and  the  larger  its  surplus  fund,  the  more  insolvent 
it  will  be.    The  contrary  is  the  actual  fact.     The  capital  and 
surplus  of  a  bank  are  its  resources,  which  may  be  used  to  pay 
its  depositors  and  other  creditors  when  there  have  been  losses, 
by  loans  or  otherwise.     If  a  bank,  by  using  its  capital  or  sur- 
plus, or  both,  can  pay  promptly  its  deposits  and  other  debts 
as  they  become  due  in  the  ordinary  course  of  business,  it  is  not 
insolvent.    Upon  the  books  and  in  the  official  statements  of 
a  bank,  capital  stock  and  the  surplus  fund  are  denominated  as 
"  liabilities,"  but  they  are  resources  of  the  bank  with  which  to 
transact  its  business.     The  more  capital  a  bank  has,  the  better 
able  it  is  to  meet  its  deposits  and  other  debts.     The  more  sur- 
plus on  hand,  the  greater  its  ability  to  pay  promptly  its  depos- 
its and  other  debts.     If  a  bank  is  able  to  pay  promptly  every 
depositor  and  every  other  creditor  in  the  ordinary  course  of 


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AMERICAN  CRIMINAL  REPORTS. 


business,  the  bank,  under  section  10  of  said  chapter  43,  is  sdlv- 
«nt,  whether  there  is  any  surplus  or  capital  to  be  distributed 
afterward  to  stockholders  or  not.  Section  Ifi  was  adopted  by 
the  legislature  for  the  protection  of  the  depositors,  not  for  the 
benefit  of  the  officers  or  stockholders  of  the  bank.  It  is  insisted 
that  this  case  ought  not  to  be  reversed  because  the  defendant 
did  not  except  to  the  instructions  given;  but  the  defendant 
made  sufficient  exceptions  to  the  refusal  of  the  court  to  give 
the  instructions  prayed  for,  and  this  refusal,  being  error,  was 
aggravated  by  the  instructions  given. 

As  another  trial  will  be  necessary,  it  is  proper  that  we  should 
call  attention  to  the  following  instruction,  which  was  given, 
although  apparently  not  excepted  to : 

"A  person  who  holds  an  office  of  director  and  vice  president 
of  a  bank  is  conclusively  presumed  to  know  the  general  condi- 
tion and  management  of  his  bank,  and  to  know  everything  of 
importance  that  occurs  therein,  either  at  the  time  it  occurs,  or 
soon  thereafter." 

In  a  criminal  case,  like  this,  such  an  instruction  is  erroneous. 
The  jury  may  take  into  consideration  the  position  of  an  officer 
of  a  bank  and  his  control  of  its  affairs  in  determining  whether 
he  knew  its  condition  as  to  solvency  or  insolvency,  but  it  is 
erroneous  to  charge  in  a  criminal  case  that  a  person  who  holds 
the  office  of  director  and  vice  president  of  a  bank  is  conclu- 
sively presumed  to  know  everything  that  occurs  in  the  bank. 
In  Bank  v.  Widfekuhler,  19  Kan.  60,  the  rule  of  the  liability  of 
a  director  and  vice  president  of  a  bank  was  stated  as  the  court 
instructed  the  jury;  but  that  was  a  civil  action,  and  this  court 
ruled  that,  although  the  director  knew  nothing  of  the  condi- 
tion or  management  of  the  bank,  yet  as  a  matter  of  law  he 
could  not,  as  against  the  interests  of  the  bank,  its  stockholders 
or  creditors,  plead  ignorance,  and  thereby  profit  by  his  own 
negligence — this,  upon  the  theory  that  an  officer  of  a  bank 
can  not  relieve  himself  from  civil  liability  b}'^  his  failure  to  per- 
form his  official  duty;  but  the  law  is  not  so  harsh  as  to  punisli 
a  party  criminally  for  the  want  of  ordinary  diligence  in  the  dis- 
charge of  his  duty.  If  an  officer,  director,  cashier,  or  manager 
of  a  bank  knowingly  permits  a  clerk  or  other  employe  of  the 
bank  to  violate  the  provisions  of  section  16  of  said  chapter  43 
by  receiving  deposits,  such  officer,  director,  cashier  or  manager 
is  guilty,  within  the  terras  of  the  statute;  but  he  is  not  guilty 
if  he  acts  ignorantly  and  innocently. 


CLARK  V.  STATE  EX  REL.  CAUEY. 


117 


The  other  errors  alleged,  inchuling  the  impaneling  of  the 
jury,  need  not  he  commented  upon,  hecuuse  the  prior  decisions 
of  the  court  are  sufficiently  decisive  of  the  .mutters  discussed. 
The  judgment  of  the  district  court  will  be  reversed,  and  cause 
remanded. 

All  the  Justices  concurring. 


Clark  v.  State  ex  rel.  Caret. 

(41  Nebr.  780.) 

Bastardy:  Venue — Judgment — Discretion  of  court — Appeal. 

1.  A  proapcTition  for  bastardy  may  be  had  in  the  county  of  the  complain- 

ant's actual  residence,  and  in  which  the  child  in  question  is  liable  to 
become  a  public  charge,  although  complainant  have  a  legal  settlement 
in  another  (xjunty  or  state. 

2.  Motions  for  continuance  are  addressed  to  the  discretion  of  the  trial  court, 

and  its  action  thereon  will  not  be  disturbed  unless  there  appears  to  have 
been  a  clear  abuse  of  discretion. 

3.  In  a  prosecution  for  bastardy,  to  order  the  accused,  on  conviction,  to 

pay  to  liie  complainant  a  specific  amount  of  money  for  the  supjjort  and 
education  of  the  illegitimate  child,  is  not  error. 

4.  Some  discretion  ia  allowed  the  trial  court  in  fixing  the  amount  in  which 

the  accusetl,  upon  conviction  for  bastardy,  shall  stand  charged;  and  a 
judgment  in  such  case  will  not,  on  appeal,  be  held  to  be  excessive,  in  the 
absence  of  a  manifest  abuse  of  discretion. 

5.  Errors  of  law,  to  be  available  in  this  court  to  the  complaining  party, 

must  be  specifically  assigned  in  the  petition  in  error. 

Error  to  District  Court,  Douglas  County;  Davis,  Judge. 

Complaint  by  the  State,  on  the  relation  of  Lizzie  J.  Carey, 
against  IMarvin  A.  Clark,  for  bastardy.  There  was  a  judg- 
ment finding  defendant  guilty,  and  he  brings  error.  Af- 
tirmed. 

Schomp  i&  Corson,  for  plaintiff  in  error. 
Charles  Offutt  and  CharUs  S.  Lohinyier,  for  defendant  in 
error. 

Post,  J.  This  was  a  bastardy  proceeding  in  the  District 
Court  for  Douglas  County,  in  which  the  plaintiff  in  error  was 
adjudged  guilty,  and  which  judgment  he  has  brought  into  this 


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AMERICAN  CRIMINAL  REPORTS. 


court  for  review  by  petition  in  error.  The  first  error  aliened 
is  the  overruling  of  his  motion  to  dismiss  for  want  r>f  jurisdic- 
tion. The  complainant,  a  minor  seventeen  years  of  ago,  re- 
sided in  Tl:urston  county  with  her  parents,  at  the  time  tlie 
child  in  question  was  begotten.  About  throe  weeks  previous 
to  the  (iling  of  the  complaint  she  left  her  home,  without  llie 
knowledge  or  consent  of  her  jjarents,  and  went  to  the  city  of 
Omaha,  in  Douglas  county.  On  the  2uth  day  of  November, 
1S91,  she  lodged  a  complaint  with  John  S.  Morrison,  a  justice 
of  the  peace  for  Douglas  county,  upon  which  the  plaintill'  iu 
error  was  arrested.  On  the  24th  day  of  the  same  month  a 
hearing  was  had  before  said  justice,  which  resulted  in  an  order 
requiring  the  accused  to  give  bond  for  his  ap|)earance  at  the 
next  term  of  the  district  court.  Soon  thereafter  the  complain- 
ant was  taken  by  her  father  to  his  home,  in  Thurston  county, 
wlieie  she  renuuned  until  January  14,  1802.  On  the  day  last 
named  she  returned  to  Omaha,  and  took  up  her  abode  at  the 
institution  mentioned  as  the  "Open  Door,"  where  she  re- 
mained until  the  trial,  on  the  27th  day  of  June  following,  and 
where  her  child  was  born  on  the  11th  day  of  March.  Iler  ex- 
penses at  the  Open  Door  were  paid  by  her  father,  but  on  cross- 
examination  she  was  asked,  "  Where  do  you  expect  to  go  when 
the  trial  is  over?"  to  which  she  answered,  "  I  do  not  know 
where  I  shall  go."  Upon  this  record  it  is  contended  that  she 
was  not  a  resident  of  Douglas  county,  within  the  meaning  of 
chapter37,Comp. St., entitled  "Illegitimate  Children,"  where- 
fore the  action  of  the  justice  of  the  peace  of  said  county  was 
without  jurisdiction  and  void.  In  that  view  we  can  not  con- 
cur. By  section  one  of  the  chapter  above  named,  it  is  pro- 
vided "  that  on  complaint  made  to  any  justice  of  the  peace  in 
this  state  by  any  unmarried  woman  resident  therein,  who  shall 
hereafter  be  delivered  of  a  bastard  child,  or,  being  pregnant 
with  a  child,  which,  if  born  alive,  may  be  a  bastard,  accusing 
*  *  *  any  person  of  being  the  father  of  such  child,  the 
justice  *  *  *  shall  issue  his  warrant  directed  to  the 
sheriff,  coroner  or  constable  of  any  county  of  this  state,  com- 
manding him  forthwith  to  bring  such  accused  i)erson  before 
said  justice  *  *  * ."  It  will  be  observed  that  the  jurisdic- 
tion thus  conferred  is  not,  by  any  express  provision,  restricted 
to  justices  of  the  peace  for  the  county  where  the  complainant 
resides,  although  it  was  intimated  in  Jngraliam  v.  State,  24 


CLARK  V.  STATE  EX  REL.  CAREY. 


110 


Xeb.  '^7,  that  such  limitation  is  to  be  implied  from  the  lan- 
fiiiigo  of  the  act.  It  has  been  frequently  said  by  this  court 
that  tills  proceeding  is  in  the  nature  of  a  civil  action.  By  that 
is  meant  that  many  of  the  rules  applicable  to  actions  under 
the  code  will  bo  applied  in  prosecutions  for  bastardy.  However, 
strictly  speaking,  it  is  a  proceeding  ^^uij/^nem,  that  is,  neither  a 
"civil  action"  nor  a  "criminal  ])rosecution,"  within  the  stat- 
utory meaning  of  the  terms.  State  v.  Mushled,  12  Wis.  025; 
State  V.  Jn(jn\  19  Wis.  235;  BaJicr  v.  State,  65  Wis.  50.  One 
of  tlie  principal  objects  of  the  proceeding  is  to  secure  the  ))ub- 
lic  against  liability  for  the  sup])ort  of  a  child,  which  is,  or  is 
lial)le  to  bocome,  a  public  charge.  It  is  clear  that  the  term 
"resident"  or  "residence,"  as  applied  to  the  complainant,  is 
not  used  in  the  sense  in  which  it  is  employed  in  the  Ci\  il  Code, 
but  applies  as  well  to  the  county  in  which  the  mother  of  the 
child  may  actually'  reside,  and  which  is  liable  to  be  charged 
with  its  support,  although  she  may  in  fact  have  a  home  in  an- 
other county  or  state.  And,  while  it  is  not  doubted  that  this 
proceeding  may  be  prosecuted  in  the  county  where  tlie  mother 
has  a  legal  settlement,  it  may  also  be  brought  and  prosecuted 
to  judgment  in  the  county  of  her  actual  residence. 

It  is  next  argued  that  the  court  erred  in  overruling  the 
motion  of  the  accused  for  a  continuance.  The  case  was  noticed 
for  trial  at  the  May,  1891,  term,  being  the  second  term  of  the 
district  court  at  which  it  stood  for  trial.  On  the  l4th  day  of 
May  it  was  set  for  trial  on  the  25th  day  of  the  same  month. 
()n  the  last  named  day  the  accused  asked  for  a  continuance  on 
account  of  the  absence  of  material  witnesses,  which  was  granted, 
and  the  cause  continued  until  June  l-ith,  on  which  day  it  was 
again  continued  on  his  motion  until  the  27th  day  of  June,  the 
ground  of  the  last  continuance  being  his  own  illness.  On  the 
day  last  named,  counsel  for  the  accused  moved  for  a  further 
continuance,  on  the  ground  that  he  was  unable  to  attend,  on 
account  of  sickness,  and  that  his  presence  and  direction  during 
the  trial  were  necessary  to  a  successful  defense,  which  motion 
was  overruled,  and  the  trial  proceeded  over  their  objection. 
In  the  last  motion  no  mention  was  made  of  absent  wit- 
nesses, and  according  to  his  admission  on  a  previous  day,  he 
had  failed  to  secure  the  evidence  named  in  his  first  application 
for  continuance.  Nor  was  there  any  showing  that  the  accused 
was  a  necessary  witness  in  his  own  behalf.    It  is  the  settled 


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120 


AMERICAN  CRIMINAL  REPORTS. 


rule  in  this  state  that  the  applications  for  a  continuance  are 
addressed  to  the  discretion  of  the  trial  court,  and  its  action  in 
respect  thereto  will  not  be  disturbed,  in  the  absence  of  a  clear 
abuse  of  discretion.  It  can  not,  in  this  instance,  be  said  that  the 
court  erred  in  denying  the  application.  The  facts  disclosed 
by  the  record  tend  to  cast  suspicion  upon  the  good  faith  of  the 
accused,  and  his  sincerity,  in  seeking  a  f  urtl^er  continuance  of 
the  cause.  Again,  on  the  hearing  of  the  motion  for  a  new- 
trial,  affidavits  were  introduced  tending  to  prove  that  he  was 
not  confined  to  his  room  on  the  day  of  the  trial,  as  claimed  by 
him,  but  was  seen  riding  on  horselrack,  in  apparent  gootl  health. 
The  question  of  his  ability  to  attend  and  participate  in  his  de- 
fense was  thus  submitted  to  the  district  court,  and  evidently 
resolved  against  him— a  finding  which  we  are  not  at  liberty 
to  disturb. 

It  is  contended  that  the  court  erred  in  adjudging  the 
accused  to  stand  charged  with  the  support  of  the  child  in  a  speci- 
fied sum,  to  wit,  $2,112,  payable  to  the  complainant  in  install- 
ments of  $12  on  the  first  day  of  each  month.  It  is  argued  in 
support  of  this  assignment  that  the  object  of  this  proceeding 
is  simply  to  keep  harmless  the  county  upon  which  the  illegiti- 
mate child  may  become  a  charge.  But  our  statute  Avill  nut 
admit  of  such  a  construction.  The  language  of  section  G  of 
the  act  under  consideration  is  "  that  in  case  the  jury  find  the 
defendant  guilty,  or  such  accused  person,  before  the  trial,  shall 
confess  in  court  that  the  accusation  is  true,  ho  shall  be  judged 
the  reputed  father  of  said  child,  and  shall  stand  charged  with 
the  maintenance  thereof  in  such  a  sum  or  sums  as  the  court  shall 
direct  *  *  *  and  the  court  shall  require  the  reputed  father 
to  give  security  to  perform  the  aforesaid  order.     *     *    *  " 

It  is  argued  also  that  the  judgment  is  excessive,  and  there- 
fore erroneous.  The  construction  uniformly  given  to  sim- 
ilar statutes  is  that  the  trial  court,  in  fixing  the  amount  in 
which  the  accused  shall  be  charged,  may  take  into  considera- 
tion such  facts  as  the  health  of  the  child  and  mother,  the  abil- 
ity of  the  latter  to  care  for  the  child,  and  the  physical  and 
financial  ability  of  the  accused,  and  in  no  reported  case  has  a 
judgment  been  reversed  on  account  of  the  amount  of  the  judg- 
ment, unloss  there  appeared  to  be  an  abuse  of  discretion.  See 
Mills  Co.  V.  Ilamaher,  11  Iowa  209;  Jerdee  v.  State,  36  Wi's. 
170;  Goodwine  v.  State,  5  Ind.  App.  63;  State  v.  Zeitler,  35  Minn. 


CLARK  V.  STATE  EX  REL.  CAREY. 


121 


238.  As  said  in  the  last  named  case,  "  No  evidence  seems  to 
have  been  introduced  bearing  especially  upon  the  subject  of 
the  amount  of  the  judgment.  We  must  presume  the  court 
acted  according  to  its  best  information  from  the  facts  proved 
at  the  trial,  and  from  all  the  circumstances  surrounding  the 
case."  There  being  no  apparent  abuse  of  discretion,  the 
amount  fixed  by  the  trial  court  is  presumed  to  be  reasonable, 
and  to  present  no  ground  for  interference  by  us. 

The  judgment  is  assailed  in  the  brief  of  counsel  for  the 
plaintiff  in  error  on  the  ground  that  it  directs  payment  to  a 
minor.  That  is  in  effect  an  objection  to  the  judgment  on  the 
oTOund  that  the  plaintiff  has  not  the  legal  capacity  to  sue, 
which,  in  actions  under  the  Code,  must  be  by  demurrer,  or  spe- 
cial plea  in  the  nature  of  a  plea  in  abatement.  1  Chit,  PI. 
448,  and  note;  J)^atl.  L.  Ins.  Co.  v.  Robinson,  8  Neb,  452,  It  is 
not  necessary  to  determine,  in  this  connection,  whether  thi 
strict  rule  of  the  Code  is  applicable  to  this  proceeding.  It  is 
a  sufficient  answer  to  the  present  objection  that  it  was  not 
made  in  the  trial  court,  nor  even  in  the  petition  in  error,  but 
is  presented  for  the  first  time  in  the  argument  of  counsel.  The 
objection  is  therefore  without  merit. 

Exception  was  taken  to  the  refusal  of  several  instruc- 
tions bearing  upon  the  question  of  the  complainant's  residence. 
While  some  of  them  correctly  state  the  law,  they  were  refused, 
evidently  on  the  ground  that  the  prosecution  was  rightly  com- 
menced in  Douglas  county.  As  already  stated,  we  concur  in 
that  view.  There  is  no  error  in  the  record,  and  the  judgment 
is  affirmed. 

Note.-  Nature  of  proceeding. — Tlie  rules  governing  civil  .actions  gov- 
ern a  bastardy  proceeding.  State  v.  Johnson,  89  Iowa  1 .  B.istardy  com- 
plaints are  civil  actions.    Hodge  v.  Sawyer,  85  Me.  885. 

Jurisdiction, — No  lying-in  expenses  or  maintenance  can  be  entered  in 
bastardy  proceedings  for  children  begotten  within  the  county  but  born 
without    Com.  V.  Walker  (Pa.  Q.  S.),  2  Pa.  Dlst.  R.  737. 

Intercourse  toith  others  than  defendant. — The  fact  that  othere  than  the  de- 
fendant had  sexual  intercourse  with  the  prosecutrix  is  not  available  as  a 
defense  if  he  was  in  truth  the  father  of  the  child.  State  v.  Baker,  (Iowa)  56 
N.W.  425;  .S'^o^e  «.  t/o/mson,  89  Iowa  1;  Sto/e  u.  Lauin,  80  Iowa,  562. 

Evidetice, — The  uncorroborated  testimony  of  the  prosecutrix  is  sufficient 
to  warrant  a  conviction  for  bastardy.     Robb  v.  Heivitt,  39  Neb.  219. 

Release  by  infant  conip/ainan^.— Declaring  release  of  defendant  from  all 
liability  for  the  support  of  the  child,  in  consideration  of  a  sum  of  money 
paid  the  complaining  witness,  is  not  binding  on  the  state  where  she  was  a 


ITTTlirTf~"'""~" 


Ml- 


122 


AMERICAN  CRIMINAL  REPORTS. 


minor  at  the  time  of  the  execution  of  the  release.  Justice  Granger  of  the 
Iowa  Supreme  Court,  in  State  v.  Baker,  89  Iowal88,8aid  a  mmor  has  not 
the  capacity  to  assume  such  obhgations  nor  does  the  law  presume  one 
capable  of  discharging  them  if  assumed.  It  can  not  be  fairly  said  that 
such  a  minor  has  power  to  bind  the  public  against  asserting  a  legal  right 
when  she  lias  not  the  power  to  bind  herself  to  the  same  extent.  The  law 
fixes  the  obligations  of  a  putative  father  to  the  public,  and  there  are  no 
considerations  to  support  a  rule  whereby  one  incapable  of  contracting 
should  be  permitted  to  waive  those  obligations  either  with  or  without  con- 
sideration. Evidence  of  previous  misconduct  of  prosecutrix,  8  Am.  Cr. 
R.  87,  and  note. 


Bigamy  ; 


1 


I>T  EE  Murphy. 
(5  Wyo.  — ;  40  Pac.  R.  398.) 

Constitutional   law— Criminal  laiv— United  States  and  terri- 
tory punishing  same  offense. 


Section  74  of  chapter  73  of  the  Session  Laws  of  Wyoming  Territoi-y  of 
1890,  being  a  part  of  the  act  of  the  legislature  of  the  Territory  of  Wyo- 
ming approved  March  14,  1890,  was  a  valid  law  of  the  territory,  when 
enacted,  and,  by  virtue  of  the  enabling  act  and  the  constitution  of  the 
state,  became,  and  stili  is,  the  law  of  the  state;  and  under  the  provis- 
ion of  said  section  w  hich  defines  and  punishes  the  crime  of  bigamy  the 
act  of  bigamy  committed  March  28,  1891,  within  the  State  of  Wyo- 
ming, is  an  offense  now  punishable  under  the  laws  of  said  state. 

2.  The  fact  that  the  Congress  of  the  United  States  had  enacted  a  law  de- 

fining and  punishing  the  crime  of  bigamy  in  the  territories  and  other 
places  over  which  the  United  States  have  exclusive  jurisdiction  did  not 
restrict  or  impair  the  right  of  the  legislature  r  f  the  Territory  of  Wyo- 
ming to  define  and  provide  a  punishment  for  bigamy,  as  an  offense 
agamst  the  territorial  sovereignty  and  its  laws. 

3.  The  contention  that  the  law  of  the  territory  was  not  valid,  bocause  the 

same  act  was  punishable  as  a  crime  under  the  laws  of  the  United 
States,  and  therefore,  if  both  were  in  force,  the  person  committing  the 
crime  would  be  subject  to  punishment  twice  for  the  same  offense,  is  not 
sound,  as  the  federal  government  could  punish  it  as  a  crime  against  it, 
while  at  the  same  time  it  might  be  a  crime  punishable  under  the  laws 
of  the  territory.  In  this  respect  there  is  no  distinction  between  a  state 
and  a  territory,  in  their  respective  relations  to  the  general  government. 

4.  The  Act  of  Congress  defining  and  punishing  bigamy  in  the  territories 

constituted  the  act  a  crime  against  the  United  States,  and  not  an  of- 
fense against  the  territory  or  its  laws,  and  did  not  so  cover  the  en- 
tire subject  of  legislation  for  the  territories  as  to  supersede  the  territo- 
rial law  uiK>n  the  same  subject,  or  restrict  the  right  of  the  legislature 
of  a  territory  to  legislate  upon  it,  so  long  as  the  territorial  legislation 
did  not  conflict  with  the  punishment  of  said  crime  by  the  United 
States,  and  did  not  purport  to  offer  immunity  to  persons  committing 
such  crime. 


'^sai,  i 


IN  RE  MURPHY. 


123 


Eoscrved  case  from  District  Court,  Albany  County. 

Aiiplication  by  James  E.  Murphy  for  a  writ  of  habeas  cor- 
pus. Case  reserved  to  this  court  by  the  rtistrict  court  on 
certain  important  and  difficult  questions  stated  in  the  opinion. 
Denied. 

iT.  E.  Corthell,  foj  petitioner. 

C.  W.  Bramel,  Pros.  Atty.,  for  respondent  Albany  county. 

ir.  II.  Bramelj  for  respondent  sheriff  of  Albany  county. 

Potter,  J.  On  the  20th  day  of  February,  1895,  James  E. 
Muri)hy  filed  in  the  District  Court  of  Albany  County  his  peti- 
tion for  the  writ  of  habeas  corpus,  questioning  the  legality  of 
his  restraint  in  the  jail  of  that  county  by  the  sheriff  thereof. 
Tiie  cause  of  the  restraint,  as  alleged,  is  a  commitment  issued 
by  a  justice  of  the  peace;  and  it  is  alleged  that  the  justice  had 
no  jurisdiction  of  the  offense  charged  against  the  petitioner, 
and  tliat  no  offense  against  the  laws  of  this  state  has  been 
charged  against  him.  A  reference  to  the  commitment,  a  copy 
of  which  is  attached  to  the  petition,  discloses  the  fact  that  the 
petitioner  was,  after  examination  upon  compl.aint  filed  before 
the  justice,  held  to  answer  to  the  district  court  for  the  crime 
of  bigamy,  committed  on  the  28th  day  of  March,  1891. 

The  writ  was  issued  upon  order  of  the  district  judge,  and 
the  sheriff  returned  that  he  had  the  petitioner  in  his  custody 
at  tlie  jail  of  said  county  by  virtue  of  the  said  commitment. 
A  copy  of  the  complaint  or  information  filed  with  the  justice 
of  the  peace  is  also  attached  to  the  return,  by  which  it  was 
charged  that  the  petitioner  on  January  22,  1881,  in  Albany 
county,  Wyo.,  did  marry  one  Lillie  C.  Kauch,  a  woman,  and 
on  ^larch  28,  1891,  at  said  county  and  state,  did  marry  one 
Alice  Warren,  the  said  Lillie  C,  to  whom  he  was  married  in 
1881,  being  alive,  the  bond  of  matrimony  between  them  being 
still  existing  and  undissolved,  and  no  legal  presumption  of  her 
death  having  arisen.  A  demurrer  was  tiled  to  the  return  of 
the  sheriff,  and  upon  this  pleading  the  issues  raised  were  sub- 
mitted to  the  court.  Thereupon  the  district  court  made  and 
entered  an  order  reserving  and  sending  said  cause  to  this  court 
for  its  decision  upon  certain  questions  certified  therein  to  be 
difficult  and  important,  viz.:  (1)  Is  thj  act  of  bigamy,  as  de- 
fined in  section  71:  of  chapter  73  of  the  Session  Laws  of  Wyo- 


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121 


AMERICAN  CRIMINAL  REPORTS. 


ming  of  1890— being  a  part  of  the  act  of  the  legislature  of  tlie 
Territory  of  Wyoming  approved  March  14,  1890 — committed 
March  28,  1891,  within  the  State  of  Wyoming,  an  offense  now 
punishable  under  the  laws  of  said  state  ?  (2)  Did  the  legisla- 
ture of  the  Territory  of  Wyoming,  at  the  time  of  the  passage 
of  the  act  of  March  14,  1890,  above  referred  to,  have  power  to 
anact  section  74  of  chapter  73  of  the  Laws  of  1890,  mentioned 
in  the  last  preceding  question  ?  (3)  If  the  enactment  of  said 
section  74  of  chapter  73  of  the  Laws  of  1890  was  not  within 
the  power  of  the  legislature  of  the  Territory  of  Wyoming,  did 
said  section  at  any  time  thereafter  come  into  force  or  become 
operative  in  the  Territory  of  Wyoming  or  in  the  State  of 
Wyoming,  and  if  so,  when  ?  (4)  Is  said  section  74  of  chapter 
73  of  the  Laws  of  Wyoming  of  1890,  now  in  force  as  a  part  of 
the  laws  of  the  State  of  Wyoming  ? 

It  is  apparent  that  the  same  ultimate  question  is  the  result 
of  each  of  the  four  propounded  by  the  court,  viz.:  is  section  74 
of  chapter  73  of  the  Laws  of  the  Territory  of  Wyoming  defin- 
ing the  crime  of  bigamy,  and  providing  a  punishment  therefor, 
now  in  force  in  this  state  ? — that  being  the  only  statutory  pro 
vision  we  have  touching  that  offense.  It  is  conceded,  as  it 
must  be,  that  if  that  section  was  valid  when  enacted,  and  was 
a  valid  law  of  the  territory,  it  became  and  was  in  force,  as  a 
law  of  the  state,  by  virtue  of  the  provisions  of  the  enabling 
act  and  the  state  constitution,  each  of  which  expressly  con- 
tinued, as  the  laws  of  the  state,  all  the  laws  of  the  territory  in 
force  at  the  time  of  the  admission  of  the  state ;  and  said  sec- 
tion had  not  been  repealed  by  any  law  of  the  territory,  nor 
has  it  been  by  any  statute  of  the  state.  Our  inquiry  is  there- 
fore directed  to  an  examination  of  the  question  whether,  in 
the  first  place,  the  law  was  a  valid  enactment  by  the  territorial 
legislature ;  and,  if  not.  in  the  second  place,  is  it  the  law  of 
the  state  ?  It  must  be  confessed,  at  the  outset,  that  this  pre- 
sents an  inquiry  of  no  little  difficulty,  and  the  field  to  be  cov- 
ered in  a  proper  and  comprehensive  consideration  thereof  is 
an  amazingly  large  one. 

The  section  of  the  statute  to  which  our  attention  has  been 
invited  reads  as  follows :  "  Whoever,  being  married,  marries 
again,  the  former  husband  or  wife  being  alive,  and  the  bond  of 
matrimony  being  still  undissolved  and  no  legal  presumption  of 
death  having  arisen,  is  guilty  of  bigamy,  and  shall  be  imprisoned 


IN  RE  MURPHY. 


125 


in  tho  penitentiary  not  exceeding  five  years."  At  the  time 
this  statute  was  enacted  there  existed  a  law  of  Congress  pun- 
ishing bigamy  in  all  the  territories,  in  the  following  language : 
"  Every  person  who  has  a  husband  or  wife  living,  who,  in  a  ter- 
ritory or  other  place  over  which  the  United  States  have  exclu- 
sive jurisdiction,  hereafter  marries  another,  whether  married  or 
single,  and  any  man,  who,  hereafter  simultaneously,  or  on  the 
same  day,  marries  more  than  one  woman  in  a  territory  or 
other  place  over  which  the  United  States  have  exclusive  juris- 
diction, is  guilty  of  [X)lygamy  and  shall  be  punished  by  a  fine 
of  not  more  than  five  hundred  dollars  and  by  imprisonment 
for  a  term  of  not  more  than  five  years;  but  this  section  shall 
not  extend  to  any  person  by  reason  of  any  former  marriage 
whose  husband  or  wife  by  such  marriage  shall  have  been  absent 
for  live  successive  years,  and  is  not  known  to  such  person  to 
be  living,  and  is  believed  by  such  person  to  be  dead,  nor  to  any 
person  by  reason  of  any  former  marriage  which  shall  have  been 
dissolved  by  a  valid  decree  of  a  competent  court,  nor  to  any 
person  by  reason  of  any  former  marriage  which  shall  have  been 
pronounced  void  by  a  valid  decree  of  a  competent  court,  on  the 
ground  of  nullity  of  the  marriage  contract."  22  Stat.  30.  The 
act  of  Congress  enacting  this  section  was  approved  March  22, 
18S2,  and  was  amendatory  of  section  5352  of  the  Ee vised  Stat, 
utes  of  the  United  States,  whicii  defined  and  provided  a  pun- 
ishment for  bigamy  in  the  territories  and  other  places  over 
which  the  United  States  have  exclusive  jurisdiction;  the  change 
by  the  amendment  being  that  part  covering  the  case  of  mar- 
riages by  a  man  to  more  than  one  woman  simultaneously,  or 
on  the  same  day,  and  the  addition  of  the  requirement  that,  in 
the  case  of  the  absence  of  the  former  husband  or  wife  for  five 
successive  years,  the  person  marrying  again  shall  believe  the 
other  to  be  dead. 

The  contention  on  behalf  of  the  petitioner  is  that  the  act  of 
Congress  covered  the  same  ground  as  the  territorial  statute, 
and  deprived  the  territory  of  the  power  to  legislate  on  the  sub- 
ject— at  least,  to  the  extent  covered  by  the  federal  statute — 
and  that,  so  far  as  the  territorial  statute  relates  to  the  offense 
of  bigamy,  it  never  went  into  effect;  and  it  is  affirmed  this  re- 
sults, first,  from  the  constitutional  provision  of  the  United 
States  that  no  person  shall  be  subject,  for  the  same  offense,  to 
be  twice  put  in  jeopardy;  second,  from  the  law  of  Congress 


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126 


AMERICAN  CRIMINAL  REPORTS. 


giving 


the  United  States  courts  exclusive  jurisdiction  in  all 
cases  of  offenses  cognizable  under  the  laws  of  the  United  States; 
and,  third,  because,  in  the  territories.  Congress  has  plenary 
legislative  power,  exercising  both  the  federal  and  state  powers 
of  o-overnment  for  the  people  of  such  territories.  These  rea- 
sons are  urged  with  much  force,  and  it  would  seem  that  if,  by 
holding  the  territorial  statute  to  have  been  valid,  it  would 
necessarily  result  in  subjecting  the  same  person,  for  one  olfense, 
to  be  twice  put  in  jeopardy,  or  if  Congress  had  fully  covered 
the  entire  subject  for  the  United  States  and  the  territory  as 
well,  in  its  dual  capacity,  as  possessing  not  only  federal  author- 
ity, but  as  doing  for  the  territories  what  the  people  of  the 
states  may  do  for  themselves,  the  argument  would  assume 
ffreat  strength,  if  it  would  not  conclusively  establish  the  cor- 
rectness  of  the  position  taken  by  counsel  and  so  ably  presented. 
Upon  a  very  thorough  research,  we  are  unable  to  discover  that 
the  precise  question  involved  in  this  issue  has  been  decided  by 
any  court,  although  one  case  hereinafter  cited  approaches  it 
quite  closely,  and  in  one  other,  at  least,  in  the  United  States 
Supreme  Court,  some  light  is  shed  upon  it. 

The  proposition  that  the  law  of  Congress  confers  upon  the 
United  States  courts  exclusive  jurisdiction,  in  all  cases,  of 
offenses  cognizable  under  the  laws  of  the  United  States,  is  not 
entitled  to  much  weight.  Those  provisions  are  not  applicable 
to  the  territories.  In  the  section  referred  to  (section  711,  Eev. 
St.),  the  jurisdiction  vested  in  the  courts  of  the  United  States 
is  made  exclusive  of  the  courts  of  the  several  states,  as  to  all 
crimes  and  offenses  cognizable  under  the  authoritv  of  the  United 
States;  and  by  another  section  (section  629,  subd.  20),  circuit 
courts  are  given  ''exclusive  cognizance  of  all  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States  except 
where  it  is  or  may  be  otherwise  provided  by  law,  and  concurrent 
jurisdiction  with  the  district  courts  of  crimes  and  offenses 
cognizable  therein."  The  provisions  of  section  711  surely 
have  no  reference  to  the  territories;  the  latter  are  not  states; 
and,  with  respect  to  subdivision  20  of  section  629,  jurisdiction 
of  crimes  and  offenses  under  the  laws  of  the  United  States, 
committed  in  a  territory,  is  otherwise  provided  by  law,  such 
jurisdiction  being  expressly  vested  in  the  territorial  courts.  It 
is  now  well  settled  that  such  courts  are  not  United  States 
courts.     Clinton  v.  Englehrechi,  13   Wall.  434.    "They  are 


^^^sa.l 


IN  RE  MURPHY. 


127 


7 
rs 


courts  of  the  territories,  invested  for  some  purposes  with  the 
powers  of  the  courts  of  the  United  States."  Reynolds  v.  U.  S., 
98  U.  S.  145.  The  territorial  courts,  therefore,  did  not  possess 
any  jurisdiction  of  crimes  against  the  federal  government  be- 
cause they  were  United  States  courts,  nor  because  of  the  pro- 
visions of  sections  629  or  711,  Eev.  St.  U.  S.  No  United  States 
court,  properly  so  called,  had  any  jurisdiction  in  the  territory. 
The  provisions  referred  to  and  thus  relied  on  are  not  controlling 
in  the  question  before  us,  or,  indeed,  at  all  persuasive.  If  there 
is  any  controlling  force  in  the  contention  of  counsel,  which 
will  compel  a  court  to  declare  that  no  law  punishing  bigamy 
exists  in  this  state,  by  reason  of  the  invalidity  of  the  terri- 
torial act,  it  resides  either  in  the  argument  that  the  person 
offending  might  be  twice  put  in  jeopardy  for  the  same  offense, 
if  both  tlie  law  of  Congress  and  of  the  territory  were  in  force, 
or  that  Congress,  being  supreme,  has  fully  covered  the  subject 
and  thus  deprived  the  legislature  of  the  territory  of  all  power 
to  legislate  upon  it.  The  constitutional  provision  against  a 
second  jeopardy,  invoked  here,  and  the  general  principle  which 
refuses  the  right  to  place  one  twice  in  jeopardy,  does  not  in- 
hibit the  twice  putting  in  jeopardy  for  the  same  act,  but  for 
the  same  offense.  That  by  one  and  the  same  act  a  person  may 
offend  and  violate  the  laws  of  more  than  one  sovereignty  to 
whom  he  owes  allegiance,  and  may  be  punishable  under  the 
laws  of  each  such  sovereignties,  is  well  settled;  and  upon  rea- 
soning which  appears  to  us  entirely  sound,  not  only,  but  merits 
our  aj^proval  as  emanating  from  many  courts  of  high  distinc- 
tion and  acknowledged  ability.  J^ox  v.  Ohio,  5  How.  410; 
Moore  v.  Illinois,  14  How.  13;  1  Bish.  Cr.  Law  (5th  Ed.)  178, 
179,  987,  989;  Chess  v.  State,  1  Blackf.  198;  State  v.  Antonio,  3 
Brev.  502;  Harlan  v.  People,  1  Doug.  (Mich.)  207;  Coin.  v.  Fvl. 
ler,  8  Mete.  (Mass.)  313;  Sutton  v.  State,  9  Ohio,  133;  Sizenwre 
V.  State,  3  Head,  26;  Jett  v.  Commonwealth,  18  Grat.  930;  State 
V.  McPherson,  9  Iowa  53.  Case  of  Slave  Amy  (opinion  of 
Chief  Justice  Taney),  reported  in  14  Md.  149.  In  Moore  v. 
People  of  Illinois,  supra,  Justice  Grier  used  the  following  lan- 
guage :  "  Every  citizen  of  the  United  States  is  also  a  citizen 
of  a  state  or  territory.  He  may  be  said  to  own  allegiance  to 
two  sovereigns,  and  may  be  liable  to  punishnoant  for  an  infrac- 
tion of  the  laws  of  either.  The  same  act  may  be  an  offense  or 
transgression  of  the  laws  of  both.    Thus,  an  assault  upon  the 


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I    : 


^W, 


128 


AMERICAN  CRIMINAL  REPORTS. 


marshal  of  the  United  States,  and  hindering  him  in  the  exocii. 
tion  of  legal  process,  is  a  high  offense  against  the  United 
States,  for  which  the  perpetrator  is  liable  to  punishment;  and 
the  same  act  may  be  also  a  gross  breach  of  the  peace  of  the  state 
—a  riot,  assault,  or  a  murder— and  subject  the  same  person  to 
a  punishment  under  the  state  laws  for  a  misdemeanor  or  felony. 
Tiiat  either  or  both  may,  if  they  see  fit,  punish  such  an  offender, 
can  not  be  doubted.  Yet  it  can  not  be  truly  averred  that 
the  offender  has  been  twice  punished  for  the  same  offense,  but 
only  that  by  one  act  he  has  committed  two  offenses,  for  each 
of  which  he  is  justly  punishable."  This  is  a  clear  and  unmis- 
takable expression  of  the  law  that  one  act  may  constitute  at 
the  same  time  an  offense  under  the  laws  of  two  jurisdictions, 
and  that,  although  both  may  punish,  the  culprit  has  not  been 
twice  punished;  ifor  the  same  offense.  In  this  connection  we 
do  not  perceive  any  distinction,  upon  principle,  whether  the 
designation  of  the  offense  is  the  same  in  both  cases.  That  there 
is  no  such  distinction  deserving  of  recognition  is  shown  by 
those  decisions  respeccing  the  right  of  the  several  states  to 
punish  the  crime  of  counterfeiting  the  coin  of  the  United 
States,  although  the  same  crime,  by  the  same  name,  is  defined 
and  punishable  under  the  laws  of  the  United  States.  I^ox  v. 
State,  5  How.  410,  and  other  cases  above  cited.  This  has  re- 
peatedly been  the  holding  of  the  courts,  and  to  demonstrate 
the  difference  existing  between  this  class  of  offenses  and  some 
others  in  which  such  right  or  power  of  the  state  has  been  de- 
nied, and  that  the  denial  of  such  power  is  not  generally  based 
upon  the  proposition  of  second  jeopardy,  it  may  be  instructive 
to  advert  to  another  offense  which  has  attracted  the  attention 
of  the  courts.  Since  the  passage  of  the  national  banking  act 
by  Congress,  which,  among  other  provisions,  contained  one 
punishing  embezzlement  by  an  officer  of  such  a  bank,  it  has 
been  held  in  several  states  that,  under  the  embezzlement  statutes 
thereof,  such  officer  could  not  be  punished  for  that  crime  in 
cases  where  the  same  crime  was  included  in  the  offense  punish- 
able under  the  act  of  Congress.  In  ever}'^  case  which  we  have 
been  able  to  examine,  the  lack  of  power  in  the  state,  in  the  re- 
spect indicated,  was  placed  squarely  upon  the  provisions  of 
sections  629  and  711  of  the  revised  statutes  of  the  United  States 
above  referred  to,  and  the  fact  that,  as  to  jurisdiction  over 
such  crime,  no  other  provision  had  been  made  by  congressional 


IN  RE  MURPHY. 


129 


law.  Kow,  as  to  counterfeiting,  the  definition  thereof  and 
punishment  therefor  is  found  in  title  70  of  the  Kevised  Statutes, 
whicli,  in  section  5328,  under  chapter  1  of  said  title,  provides, 
"  Notliing  in  this  title  shall  be  held  to  take  away  or  impair  the 
jurisdiction  of  the  courts  of  the  several  states  under  the  laws 
thereof."  And,  as  no  such  provision  appears  in  reference  to 
the  crime  of  embezzlement  by  a  national  bank  officer,  it  has 
been  held  that  the  jurisdiction  of  the  United  States  courts  as 
to  such  crime  is  exclusive  of  the  courts  of  the  several  states,  by 
virtue  of  sections  629  and  711;  and  it  is  clearly  to  be  observed 
that,  had  Congress  provided  as  to  such  crime  as  it  had  in  rela- 
tion to  others  in  title  70,  the  same  courts  would  not  have  re- 
linquished their  right  to  punish  the  same  offenses,  any  more 
than  in  the  case  of  counterfeiting. 

The  purpose  in  thus  calling  attention  to  these  cases  is  simply 
to  illustrate  that  it  is  only  when  Congress  has  expressly  made 
the  jurisdiction  of  their  own  courts  exclusive  that  the  state 
courts  refuse  to  themselves  the  power  to  punish  offenses  also 
cognizable  under  the  authority  of  the  United  States.  People 
V.  Fonda,  G2  Mich.  401,  29  N.  W.  26;  Commonwealth  v.  Lu- 
berg,  94  Pa.  St.  85;  Com,,  v.  Felton,  101  Mass.  204.  In  Co9n. 
V.  Fuller,  8  Mete.  (Mass.)  313,  the  learned  justice  delivering 
the  opinion  said  :  "  In  regard  to  crimes  which  existed  prior  to 
the  constitution,  and  were  the  subject  of  state  legislation,  or 
were  punishable -as  offenses  at  common  law,  and  the  preven- 
tion of  which  is  essential  to  the  peace  and  good  order  of  the 
community,  though  such  crimes  are  also  forbidden  by  the 
Constitution  of  the  United  States,  and  the  authority  to  pun- 
ish the  commission  of  them  is  conferred  by  Congress  upon  the 
federal  courts,  still,  unless  such  grant  of  power  is  exclusive  by 
the  terms  of  the  constitution,  or  is  made  exclusive  by  acts  of 
Congress,  the  concurrent  right  of  the  state  courts  to  try  per- 
sons accused  of  such  crimes  is  not  necessarily  taken  away." 

It  should  perhaps  be  here  observed,  in  connection  with  what 
has  already  been  stated  as  to  embezzlement,  that  another  ele- 
ment entered  into  the  consideration  of  such  cases,  viz.,  that 
such  crime  was  not  a  common  law  offense.  In  the  case  last 
cited,  also,  the  court  pays  its  respects  to  the  proposition  that 
the  state  law  was  unconstitutional  because  it  subjected  the 
same  person  to  the  operation  of  two  distinct  laws  upon  the 
same  subject,  and  inflicting  different  pains  and  penalties,  and 
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AMERICAN  CRIMINAL  REPORTS. 


it  holds  that,  although  a  delinquent  can  not  be  punished  twice 
for  the  same  offense,  the  supjiosed  repugnancy  between  the 
several  laws  does  not  in  fact  injuriously  affect  any  individual, 
but  that  the  offender  runs  the  hazard  under  which  jurisdiction 
he  may  be  subjected  to  punishment,  and  that  while  the  pro- 
viso in  the  act  of  Congress  which  we  have  mentioned  remains 
unrepealed,  the  criminal  can  not  be  thus  exposed,  as  the  court 
which  lirst  exercises  jurisdiction  has  the  right  to  enforce  it  by 
trial  and  judgment,  by  the  well-established  principles  of  law 
relating  to  the  jurisdiction  of  courts.  Bishop,  in  bis  work  on 
Criminal  Law,  in  discussing  this  question,  after  announcing 
the  doctrine  of  the  validity  of  the  laws  of  the  state  in  such 
cases,  refers  to  the  result  thereof,  and  states  that,  although  the 
rule  best  sustained  is  that  the  jeopardy  under  one  government 
is  not  a  good  plea  in  defense  to  an  indictment  under  the  other, 
the  courts  of  either  government  will  give  a  sort  of  practical 
effect  to  a  judgment  of  acquittal  or  conviction  in  those  of  the 
other  government,  as  far  as  their  forms  of  procedure  will  per- 
mit, though  the  constitutional  provision  does  not  bind  them  to 
do  so,  and  that  the  better  opinion  seems  to  be  that  after  the 
tribunals  of  the  one  government  dealt  with  an  offender  those 
of  the  other  will  decline  prosecution,  or  in  some  way  suffer  the 
defendant  to  avail  himself  of  this  matter.  He  adds,  however, 
*'  At  the  same  time  there  is  much  just  weight  in  the  considera- 
tion that  if  a  man,  though  by  one  act,  has  violated  the  laws  of 
two  governmental  powers,  it  is  proper  both  should  punish  him," 
A  terse  but  instructive  disquisition  in  this  reganl  is  found  in 
the  opinion  of  Chief  Justice  Taney  in  case  of  the  Slave  Amy, 
charged  with  robbing  the  United  States  mail,  reported  in  full 
as  a  note  to  the  case  of  Negro  Ann  Haminond  v.  State,  14  Md. 
149.  He  says :  "  In  maintaining  the  power  of  the  United 
States  to  pass  this  law,  it  is,  moreover,  projjer  to  say  that  as 
these  letters,  with  the  money  within  them,  Avere  stolen  in 
Virginia,  the  party  might  undoubtedly  have  been  punished  in 
the  state  tribunals,  according  to  the  laws  of  the  state,  without 
any  reference  to  the  postoffice  or  the  act  of  Congress,  because, 
from  the  nature  of  our  government,  the  same  act  may  be  an 
offense  against  the  laws  of  the  United  States,  and  also  of  a 
state,  and  be  punishable  in  both  *  *  *  and  the  punish- 
ment in  one  sovereignty  is  no  bar  to  his  punishment  in  the 
other."    •'  Yet,  in  all  civilized  countries,  it  is  recognized  as  a 


IN   RE  MURPHY. 


131 


fundamental  principle  of  justice  that  a  man  ought  not  to  bo 
punished  twice  for  the  same  offense.  And,  if  this  party  had 
been  punislied  for  the  larceny  by  a  state  tribunal,  the  court 
would  have  felt  it  to  be  its  duty  to  suspend  sentence,  and  to 
represent  the  facts  to  the  president,  to  give  him  an  opportunity 
of  ordering  a  nolle  profteqvi,  or  granting  a  pardon." 

If,  then,  we  were  to  attempt  to  formulate  a  rule  which 
seems  to  be  tiie  result  of  the  weight  of  authority  upon  the 
power  of  a  state  to  punish  the  same  offense  under  its  laws 
which  is  also  punishable  under  the  laws  of  the  United  States, 
it  would  be  that  as  to  any  crime  which  was  punishable  as  at 
common  law,  or  by  the  states,  before  the  adoption  of  the  con- 
stitution, the  courts  of  the  states  have  concurrent  jurisdiction 
with  the  courts  of  the  United  States,  in  the  absence  of  an  ex- 
press destruction  of  the  jurisdiction  of  the  state  courts  by  act 
of  Congress;  and  that  any  statute  of  the  state,  in  such  case, 
assuming  to  punish  such  a  crime,  is  not  invalid  because  it  may 
seem  to  subject  a  criminal  to  a  prosecution  and  sentence  under 
both  the  law  of  the  state  and  United  States;  and  further,  that 
in  the  interest  of  justice,  after  a  man  has  been  tried  for  the 
offense  in  the  court  of  the  one  government,  the  courts  of  the 
other,  for  the  same  act,  would,  within  the  scope  of  their  au- 
thority, in  some  way,  suffer  the  accused  to  obtain  the  benefit 
of  the  former  trial,  whether  thereon  he  has  been  convicted  or 
acquitted,  although  such  courts  would  not  be  absolutely  bound 
to  extend  such  advantage  to  the  offender. 

Having  determined  the  relation  existing  in  this  respect 
between  a  state  and  the  federal  government,  we  are  confronted 
with  the  necessity  of  determining  whether  the  same  rela- 
tion exists  between  a  territory  such  as  Wyoming  was,  and  the 
general  government,  or  whether  the  situation  is  so  much 
different  with  a  territory  as  to  exclude  from  our  consideration 
the  results  arrived  at  when  a  state  law  punishes  the  same 
offense  as  the  United  States  law.  As  already  indicated,  the 
provisions  of  the  judiciary  act  giving  exclusive  jurisdiction  to 
the  United  States  courts  in  all  offenses  cognizable  under  the 
authority  of  the  United  States  are  not  applicable  to  such 
offenses  committed  within  the  territories.  Neither  do  the  pro- 
visions of  section  5328,  Eev.  St.,  which  declare  that  nothing 
in  that  title  shall  be  held  to  take  away  or  impair  the  jurisdic- 
tion of  the  courts  of  the  several  states  under  the  laws  thereof, 


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132 


AMERICAN  CRIMINAL  REPORTS. 


affect  tlio  territories.    We  must  look  to  the  laws  goveining 
these  latter  governments  for  legislation,  if  any,  which  shall 
have  bearinf  upon  their  right  to  prosecute  the  same  ofTeiises 
co«i'nizable  under  the  laws  of  the  United  States.    The  charac- 
ter and  powers  of  a  territorial  government  and  its  courts  have 
been  fruitful  of  much  judicial  investigation.     We  have  already 
adverted  to  the  subjects  of  its  courts,  and  sLown  that  it  is  now 
too  well  settled  to  admit  of  argument  that  they  are  purely 
legislative  or  territorial  courts,  in  some  of  which  have  been 
vested  jurisdiction  to  inquire  into  and  try  offenses  against  the 
United  States.    The  territories,  as  organized  by  Congress,  are 
given  a  local  government,  with  powers  almost  as  extensive  as 
those  possessed  by  the  states.     They  have  a  legislative  depart- 
ment to  enact  laws,  a  judicial  department  to  construe  and 
enforce  them,  and  an  executive  to  execute  them.    Subject  to 
the  constitution  and  laws  of  Congress,  which  stand  as  the 
fundamental  law  for  the  territories  when  and  in  so  far  as  ap- 
plicable, they  have  a  government  in  all  respects,  full,  adequate, 
and  complete.    True,  Congress  may  legislate  directly  for  them, 
although  this  power  has  seldom  been  exercised ;  it  may  annul 
or  abrogate  their  laws;  but  the  laws  of  the  local  legislature,  if 
not  in  contravention  of  the  fundamental  law,  are  as  valid  and 
binding  upon  the  people  of  the  territory,  unless  annulled  or 
abrogated  by  congressional  enactment,  as  the  laws  of  the 
state  upon  the  people  thereof.    The  grant  of  legislative  power 
to  the  territories,  and  so  to  Wyoming,  is  found  in  section  .1851 
of  the  Eevised  Statutes  of  the  United  States,  in  these  words : 
"  The  legislative  power  of  every  territory  shall  extend  to    11 
rightful  subjects  of  legislation  not  inconsistent  with  th< 
stitution  and  laws  of  the  United  States.     But  no  law  sh;        o 
passed  interfering  with  the  primary  disposal  of  the  soil,  tut 
tax  shall  be  imposed  upon  the  property  of  the  United  States ; 
nor  shall  the  lands  or  other  property  of  non-residents  be  taxed 
higher  than  the  lands  or  other  property  of  residents."    With 
this  power  of  legislation  so  general,  with  undoubted  authority 
thereunder  to  define  and  provide  for  the  punishment  of  crimes 
and  offenses,  is  there  any  distinction  between  such  a  govern- 
ment and  a  state,  in  its  relation  to  the  United  States,  concern- 
ing crimes,  with  respect  to  the  objection  that,  if  the  act  is 
punishable  by  both,  one  is  liable  to  be  twice  put  in  jeopardy  ? 
We  are  unable  to  perceive  any.    If  such  an  objection  is  una- 


IN  RE  MURPHY. 


133 


vailin<?  when  assailing  a  law  of  a  state  which  assumes  to  pun- 
ish a  crime  for  Avhich  the  perpetrator  is  also  amenable  to  a 
law  of  Congress,  it  can  not  commend  itself  as  effectual  in  at- 
tacking a  similar  or  kindred  territorial  law.  The  territorial 
jcislature  has  as  complete  authority,  fundamentally,  to  enact 
the  law  and  punish  the  crime,  especially  if  it  be  an  offense  pun- 
ishable at  common  law,  as  the  legislature  of  a  state.  The 
territory  not  only  possesses  as  much  power  to  protect  its  peo- 
ple in  tlioir  peaceful  avocations,  and  guard  them  against  the 
commission  of  those  crimes  which  offend  the  moral  sense  and 
render  property  and  life  insecure,  but  it  is  as  fully  their  duty 
to  do  so  as  it  is  of  a  state  government.  For  that  purpose  they 
have  been  organized,  and  invested  with  such  enlarged  powers 
and  responsibilities.  We  are  therefore  of  the  opinion  that  the 
fact  that  the  law  of  "Wyoming  punishing  bigamy  might  possi- 
bly have  subjected  an  offender  to  a  prosecution  under  the  laws 
nf  <;lie  territory,  as  well  as  the  United  States,  is  not  a  valid  ob- 
jecttbn  to  the  statute.  Every  reason  which  disposes  of  that 
proposition  or  argument  when  used  to  attack  the  validity  of  a 
law  of  a  state  is  equally  applicable  to  a  territorial  statute. 

Some  stress  has  been  placed  upon  what  may  be  called  the 
"  Ahiska  Cases."  U.  S.  v.  Clark,  46  Fed.  633,  and  cases  therein 
cited.  Those  cases  arose  upon  prosecutions  for  murder  com- 
mitted in  Alaska,  and  the  inquiry  was  presented  whether  the 
law  of  the  United  States,  or  that  of  Oregon,  prevailed,  as  to 
that  offense.  Congress,  in  legislating  for  Alaska,  had  provided 
that  the  laws  of  Oregon  in  force  on  a  certain  date,  so  far  as 
applicable,  and  not  in  conflict  with  the  provisions  of  that  par- 
ticular act  of  Congress  or  the  laws  of  the  United  States,  should 
e  in  force  in  Alaska.  The  statutes  of  the  United  States  pro- 
vided for  the  punishment  of  murder  in  places  under  the  ex- 
clusive jurisdiction  of  the  United  States.  Those  cases  are 
not  controlling.  Alaska  possessed  no  legislative  power.  Or- 
egon was  r  t  given  authority  to  legislate  for  that  territory. 
The  sole  legislative  authority  over  it  resided  in  Congress.  All 
offenses  punishable  when  committed  there  were  offenses 
against,  and  prosecuted  in  the  name  of,  the  United  States. 
Alaska  w  >  a  place  over  which  the  United  States  had  "  exclu- 
sive jurisdiction,"  in  the  meaning  of  that  phrase  when  used  in 
the  acts  of  Congress,  whereas  it  has  been  frequently,  and  we 
think  universally,  whenever  that  point  has  arisen,  been  held 


in 


(  ; 


134 


AJIERICAN  CRIMINAL  REPORTS. 


that  such  phrase,  used  alone,  has  no  application  to,  and  does 
not  include,  the  territories.    Franklin  v.  U.  S.,  1  Colo.  35. 

But  it  is  urged  with  considerable  force  that  Congress  has,  by 
its  legislation  already  alluded  to,  covered  the  entire  subject, 
and  as  a  consequence  thereof  the  territory  was  deprived  of  the 
authority  to  legislate  thereon  at  all,  or  to  define  or  provide 
for  the  punishment  of  bigamy.  Some  of  the  foregoing  observa- 
tions are  of  interest  in  an  investigation  of  the  question  tlius 
presented. 

We  must  recognize  that  the  United  States  was  the  supreme 
power;  that  Congress  could  legislate  directly  for  the  territory; 
that  its  enactments  were  the  superior  laws,  if  api)licable  here. 
Did  Congress,  by  its  bigamy  legislation,  cover  the  entire  sub- 
ject, so  as  to  take  away  or  impair  the  right  or  power  of  the 
territory  to  legislate  thereon  ?  If  so,  then  our  law  was  invalid. 
"We  have  noticed  the  effect  in  a  state  where  there  is  no  ex- 
clusive jurisdiction  given  to  the  United  States  courts,  and  that 
although  the  law  of  Congress  actually  covere  and  provides  for 
the  same  subject,  and  rightfully  so,  and  such  federal  power  is 
superior  so  far  as  that  goes,  to  the  state  authority,  nevertheless 
the  state  law  is  valid,  and  its  courts  may  enforce  it.  With  the 
territories  the  authority  and  law-making  power  in  Congress  is, 
of  course,  much  more  comprehensive.  But,  however  this  may 
be,  we  apprehend  that  there  exists  a  marked  division  between 
the  methods  employed  by  Congress,  and,  after  the  grant  of 
authority  to  the  territory,  even  between  its  own  powers  of 
legislation.  It  may,  it  is  true,  legislate  directly  for  the  terri- 
tories. When  it  does  so,  it  not  only  says  so,  but  makes  such 
legislation  t'^e  law  of  the  territory,  per  se.  Now,  there  are 
two  classes  of  crimes  which  may  be  committed  in  a  territory — 
those  in  violation  of  the  laws  of  the  United  States,  and  those 
offending  against  the  laws  of  the  territory.  These  two  classes 
are  recognized  by  Congress.  By  section  1894,  Rev.  St.,  pro- 
vision is  made  for  the  payment  of  the  expenses  of  prosecutions 
for  offenses  against  the  laws  of  the  United  States,  and  the 
employment  and  subsistence  of  offenders  against  such  laws. 
Section  1895  authorizes  the  imprisonment  in  a  United  States 
pei'''e;'  iary  of  persons  convicted  of  offenses  against  territorial 
laws  at  the  cost  of  the  territory;  and  chapter  235,  1  Supp. 
Rev.  St.,  p.  299,  authorizes  the  legislative  assemblies  of  the  ter- 
ritories to  provide  for  the  care  and  custody  of  persons  con- 


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IN  RE  MURPHY. 


135 


victeil  of  crime  under  the  laws  of  the  territory,  as  they  shall 
deem  proper,  and  in  so  doing  to  contract  for  their  care  in  some 
other  state  or  territory,  but  the  expense  thereof  to  be  borne 
by  the  territory.  No  doubt,  Congress  can  pass  a  law  expr  jssly 
making  a  certain  act  a  crime  against  the  territory,  and,  as  such, 
punishable  in  the  courts  of  the  territory  as  a  crime  against 
the  laws  thereof,  and  thus  clearly  constitute  it  a  crime  against 
the  laws  of  the  territory.  It  has  practically  done  so  in  the 
case  of  certain  felonies  committed  by  one  Indian  against  the 
person  or  property  of  another  Indian.  Such  offenses  are  ex- 
pressly made  subject  to  the  laws  of  the  territory,  and  are  to  be 
tried  therefor  in  the  same  courts,  and  in  the  same  manner  and 
subject  to  the  same  penalties,  as  are  all  other  persons  charged 
with  the  commission  of  such  crimes.  23  Stat.  c.  341,  p.  362; 
Id.,  §  9,  p.  3S5;  U.  S.  v.  Kagmna,  118  U.  S.  375.  That  statute 
has  undoubtedly  defined  a  crime  against  the  territory  which 
the  rourts  of  the  territory  must  punish.  In  U.  S.  v.  Kagama, 
Justice  Miller,  in  the  opinion,  says :  "  In  this  class  of  cases  the 
Indian  charged  with  the  crime  shall  be  judged  b}'^  the  laws  of 
the  territory  on  that  subject,  and  tried  by  its  courts."  In  that 
case,  it  is  true,  it  was  held  that  when  such  crimes  were  com- 
mitted by  an  Indian  against  another  Indian,  within  the  limits 
of  an  Indian  reservation  within  the  boundaries  of  a  state,  the 
United  States  courts  had  jurisdiction  to  punish  them,  although 
there  was  no  express  limitation  upon  the  jurisdiction  of  the 
state  courts;  but  that  view  was  expressed,  as  we  understand  it, 
because  of  the  peculiar  relations  sustained  by  the  federal  gov- 
ernment toward  the  Indians.  That  case,  however,  presented 
solely  the  power  of  the  United  States  to  enact  the  statute 
authorizing  the  courts  of  the  United  States  to  take  jurisdiction 
of  such  offenses  when  committed  upon  a  reservation  within  a 
state.  Whether  or  not  the  state  courts  had  concurrent  juris- 
diction was  not  decided,  unless  inferentially.  Congress,  in- 
deed, by  the  act  referred  to,  did  not  define  the  felonies,  for  the. 
commission  of  which,  in  a  territory,  an  Indian  was  punishable, 
but  placed  such  offenses,  when  perpetrated  by  one  Indian 
against  the  person  or  property  of  another  Indian,  under  the 
laws  and  jurisdiction  of  the  territory  and  its  courts. 

The  authority  of  the  United  States  over  crimes  is  well 
understood,  and  requires  no  elucidation  here.  It  may  not  be 
impnjper,  however,  in  this  connection,  to  briefly  refer  to  cer- 


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AMERICAN  CRIMINAL  EEPORTSw 


tain  classes  of  such  crimes,  that  our  position  may  not  bo  mis- 
taken.   There  are  some  acts  which  Congress  may  by  law  des- 
io-nate  as  a  crime  against  the  general  government,  which  affect 
every  citizen,  whether  in  a  state  or  territory;  such  as  offenses 
ao-ainst  the  postal  service;  the  administration  of  justice  in  the 
federal  courts;  against  the  operations  of  the  government,  such 
as  counterfeiting,  false  personation  in  procuring  naturalization, 
presenting  false  claims  against  the  government,  etc.    These 
and  kindred  offenses  operate  upon  all  citizens  of  the  United 
States,  and  that  they  reside  in  a  state  constitutes  no  exemption 
therefrom.    Again,  Congress  defines  offenses  committed  in  such 
places  over  which  the  United  States  have  exclusive  jurisdiction, 
or  upon  the  high  seas,  and  in  this  class  are  found  such  com- 
mon-law offenses  as  mui  der  and  robbery.    This  class  has  been 
held  not  operative  in  the  territories.    And  then,  occasionally, 
an  act  is  made  a  crime  against  the  United  States  when  com- 
mitted witliin  a  territory,  as  well  as  any  other  place  over 
which  the  United  States  have  exclusive  jurisdiction.    Under 
the  latter  head,  or  included  in  that  class,  is  the  crime  of  big- 
amy or  polygamy,  and  some  kindred  offenses.    In  every  class, 
however,  the  crime  is  against  the  United  States,  and  a  violation 
of  its  laws.    A  convict  thereunder  is  imprisoned,  if  at  all,  at 
the  expense  of  the  general  government.    The  executive  clem- 
ency, if  exercised,  must  emanate  from  the  president.     If  in- 
dictment is  found  for  such  crimes  in  a  territory,  the  proper 
United  States  officials  would  prosecute.     The  courts  of  the 
territory  would,  in  enforcing  such  lav/,  exercise  the  jurisdiction 
of  United  States  courts  by  legislative  requirement.    In  other 
words,  such  crimes,  to  be  more  ])articular,  the  crime  of  big- 
amy, as  defined  and  punishable  by  act  of  Congress,  is  a  crime 
against  the  sovereignty  of  the  United  States.    The  ace  of  Con- 
gress embraces  no  express  limitation  upon  the  right  of  the  ter- 
ritory to  also  punish  the  same  act  as  an  offense  against  it  and 
its  local  laws,  nor  upon  the  local  legislature  to  enact  a  law  de- 
fining and  providing  a   punishment  therefor  as   an  offense 
against  the  territorial  sovereignty.     As  there  are,  in  practical 
and  legal  effect,  two  governments,  although  the  one  emanates 
from  the  other,  we  are  unable  to  perceive  why  the  legislature 
of  the  territory,  under  the  general  grant  of  power  with  which 
it  was  invested,  may  not  have  enacted  a  valid  law  assuming  to 
punish,  as  a  terriiorial  offense,  the  crime  of  bigamy.  It  does  not 


IN  RE  MURPHY. 


137 


conflict  with  the  United  States  statute.  It  could  not  and  did 
not  assume  to  destroy  the  force  or  effect  of  the  congressional 
provision.  It  could  not  have  assumed  to  offer  immunity  to 
those  desiring  to  contract  polygamous  marriages.  By  silence, 
it  could  only  have  refused  to  punish  it  as  a  territorial  crime. 
To  avoid  this  possibility,  Congress  undertook  to  punish  it  as  a 
crime  against  the  federal  government.  As  the  same  courts 
in  the  territory  ultimately  tried  offenders  against  both  the 
o-eneral  government  and  the  territory,  they  could,  and  un- 
doubtedly would,  have  so  tempered  their  proceedings  with  that 
princii^leof  justice  in  view,  which  has  been  adverted  to,  that 
no  person  would  have  unduly  suffered  more  than  once  for  the 
two  offenses  flowing  from  one  and  the  same  act.  That  a  possi- 
bility, remote  or  near,  might  exist  of  such  double  punishment, 
is,  in  our  judgment,  no  reason  for  holding  the  law  of  the  terri- 
tory invalid. 

In  the  case  of  Davis  v.  Beason,  133  U.  S.  333,  appears  a 
statement,  in  the  opinion  of  Justice  Field,  which  has  frequently 
been  quoted,  the  same  being  to  the  effect  that  the  cases  in 
which  the  legislation  of  Congress  will  supersede  the  legislation 
of  a  state  or  territory,  without  specific  provisions  to  that  effect, 
are  those  in  which  the  same  matter  is  the  subject  of  legislation 
by  both.  We  do  not  understand  that  Justice  Field  intended  to 
express  a  doctrine  which  would  abrogate  a  law  of  the  territory 
such  as  is  assailed  in  this  proceeding.  His  opinion  in  that 
case,  taken  altogether,  sustains  the  views  enunciated  by  us. 
That  case  brought  before  the  court  an  act  of  the  legislature  of 
the  Territory  of  Idaho  providing  that  no  person  Avho  is  a  biga- 
mist or  polygamist  should  be  permitted  to  vote  at  any  election 
in  the  territory,  and  applying  the  prohibition  also  to  all  Avho 
teacli,  advise,  counsel  or  encourage  others  to  become  biga- 
mists or  polygamists  or  who  are  members  of  an 37^  organization 
which  teaches,  counsels  or  encourages  the  same.  Appellant 
Davis,  with  others,  was  indicted  for  a  conspiracy  to  pervert 
and  obstruct  the  due  administration  of  the  laws  of  the  terri- 
tory by  procuring  themselves  to  be  admitted  to  registration  as 
electors  by  taking  the  oath  required,  falsely.  Congress  had 
also  passed  an  act  prohibiting  bigamists  and  polygamists  from 
voting  in  any  territory.  Justice  Field,  in  the  opinion,  referring 
to  the  crime  of  bigamy,  said :  "  Bigamy  and  polygamy  are 
crimes  by  the  laws  of  all  civilized  and  Christian  countries. 


n    i 


'r 


ill 


188 


AMERICAN  CRIMINAL  REPORTS. 


They  are  crimes  by  the  laws  of  the  United  States,  and  they  are 
crimes  by  the  laws  of  Idaho."    Again,  after  quoting  the  Idaho 
statute  above  referred  to,  he  held  that  the  same  was  not  open 
to  any  constitutional  or  legal  objection,  although  the  same 
point— that  Congress  having  legislated  thereon,  the  territory 
could  not— was  made  before  that  court.     After  quoting  the 
United  States  statute  prohibiting  bigamists  from  voting  in  any 
territory,  he  used  the  following  language :     "  This  is  a  general 
law  applicable  to  all  territories  and  other  places  under  the  ex- 
clusive jurisdiction  of  the  United  States.     It  does  not  purport 
to  restrict  the  legislation  of  the  territories  over  kindred  offenses, 
or  over  the  means  for  their  ascertainment  and  prevention.'' 
The  Supreme  Court  of  the  Territory  of  Montana  had  occasion  to 
determine  a  very  similar  question.  One  Guyott  was  convicted  of 
selling  whisky  to  an  Indian,  contrary  to  the  statute  of  the  terri- 
tory constituting  such  act  a  crime.   It  was  argued  there  that  the 
act  was  invalid,  and  that  Congress  had  provided  a  punishment 
for  the  offense,  and  that  the  power  of  Congress  was  exclusive 
over  the  subject.    The  latter  point  was  the  one  which  seems 
to  have  been  more  particularly  urged.     However,  the  court 
upheld  the  conviction,  after  showing  that  the  facts  upon  which 
he  was  convicted  brought  the  case  within  the  purview  of  the 
statutes  both  of  the  United  States  and  the  territory.     It  was 
conceded  in  the  opinion  in  that  case  that  Congress  had  authority 
to  enact  laws  punishing  the  same  crime,  but  the  court  say: 
"  These  doctrines  are  not  questioned  by  this  court,  and  do  not 
decide  that  a  state  or  territory  has  no  right  to  pass  laws 
making  definite  acts  of  its  citizens  in  selling  intoxicating 
liquors  to  Indians,  crimes,  and  prescribing  penalties  for  their 
infraction."    And  again,  after  quoting  from  the  opinion  of  the 
Supreme  Court  of  the  United  States  in  Ho.'nhuckU  v.  Toomhs, 
18  Wall.  655,  with  reference  to  the  power  of  legislation  exist 
ing  in  the  territories,  wherein  it  is  said,  "  The  powers  of  legis- 
lation thus  exercised  by  the  territorial  legislatures  are  nearly 
as  extensive  as  those  exercised  by  any  state  legislature,"  say, 
"The  act  under    consideration  is  clearly  w'ithin  the  police 
power  of  the  territorial  government,  as  defined  by  the  courts, 
and  is  not  inconsistent  with  the  constitution  and  laws  of  the 
United  States."     Territory  v.  Ouyott,  9  Mont.  46.     It  will  be 
observed  that  the  Montana  case  is  squarely  in  point.    We  are 
clearly  of  the  opinion  that  the  act  defining  and  punishing 


•  -' 


%mA 


PEOPLE  V.  BEEVERS. 


ISO 


bio-am  V,  passed  by  the  legislature  of  the  Territory  of  "Wyoming, 
was  witliin  the  power  of  that  bod}',  and  that  the  same  was  not 
inconsistent  with  the  constitution  or  laws  of  the  United  States; 
that  it  was  a  valid  enactment,  and,  not  having  been  repealed, 
is,  by  virtue  of  the  provisions  of  the  enabling  act  and  state 
constitution,  in  force  as  a  law  of  the  state. 

Answering  the  questions  upon  which  this  case  was  reserved, 
and  wliich  are  quoted  at  length  herein,  we  say — 

To  question  1 :  Yes;  the  act  of  bigamy,  as  defined  in  section 
7-1:  of  chapter  73  of  the  Session  Laws  of  Wyoming  of  1890, 
committed  March  28,  1891,  within  the  State  of  Wyoming,  is  an 
offense  punishable  under  the  laws  of  said  state. 

To  question  2 :  Yes;  the  legislature  of  the  Territory  of 
Wyoming  had  power  to  enact  said  section  at  the  time  of  the 
passage  of  said  act  of  March  14,  1890. 

To  question  3 :  It  is  unnecessary  to  answer  this,  as  we  hold 
the  law  was  in  force  as  a  law  of  the  territory. 

To  question  4 :  Yes;  said  section  74  of  chapter  73  of  the 
Laws  of  Wyoming  of  1890,  is  now  in  force  as  a  part  of  the  laws 
of  the  State  of  Wyoming. 

GuoKsnKCK,  C.  J.,  and  Conawav,  J.,  concur. 

Note.— I  do  not  question  the  soundness  of  the  foregoing  decision  when 
applied  to  tlie  case  in  hand,  but  I  do  protest  that  the  territory,  which  is  the 
creatiiro  of  tlie  United  States,  and  its  creator,  could  not  mete  out  two  sepa- 
rate punislinients  for  the  same  fict.  Whichever  first  acquired  jurisdiction 
might  maintain  it,  but  both  could  not  lawfully  punish  the  offender  for  the 
same  act.  See  discussion  of  this  question  in  note  to  Hughes  v.  People,  5 
Am.  Cr.  R.  80. 


?   1 


PEOPLK   v.  BeKVERS. 


(99  Cal.  286.) 
BiOAMV :    Marriage  under  age  of  consent— Subsequent  cohnhitation. 

Under  a  statute  declaring  that  the  marriage  of  one  below  the  age  of 
consent  can  only  be  anitulled  by  that  party,  and  that,  if  he  or  she  freely 
coiiabit  with  the  other  after  attaining  the  age  of  consent,  the  marriage 
Ls  valid,  one  who  has  married  a  girl  below  the  age  of  consent,  can  not, 
after  remarrying,  plead  that  fact  to  the  charge  of  bigamy. 

A  marriage  by  consent,  followed  by  '•  a  mutual  assumption  of  marital 


?•<■''';. ^-i 


;i 


i 


afegl. 


140 


AMERICAN  CRIMINAL  REPORTS. 


rights,  duties  or  obligations,"  as  described  in  Civil  Code,  §  55,  is  ns 
sufficient  a  basis  for  a  prosecution  for  bigamy  as  one  by  consent,  "  fol- 
lowed  by  a  solemnization." 
3.  In  a  prosecution  for  bigamy,  on  a  defense  that  the  first  marriage  was 
illegal,  the  judgment  roll  of  a  suit  for  divorce  by  the  first  wife  against 
the  accused,  granted  by  the  court,  and  pending  on  appeal  in  the 
supreme  court,  is  incompetent  evidence,  and,  if  admitted,  prejudicial. 

Appeal  from  Superior  Court,  Fresno  County;  S.  A.  Holmes, 

Judge, 

Prosecution  of  John  A.  Beevers  for  bigamy.  Yerdict  of 
guilty  and  judgment  thereon.  New  trial  denied.  Defendant 
appeals.    Eeversed  and  remanded  for  new  trial. 

Frank  II.  Short,  for  appellant. 

Attorney  General  W.  II.  H.  Hart,  for  the  People. 

Gaeoctte,  J.  Appellant,  Beevers,  was  convicted  of  bigamy 
and  now  prosecutes  an  appeal  to  this  court  from  the  judg- 
ment and  order  denying  his  motion  for  a  new  trial.  It  is 
insisted  that  the  evidence  is  insufficient  to  justify  the  verdict. 
Beevers,  being  of  the  age  of  twenty  j'^ears,  and  Lou  Jacobs, 
beino-  of  the  age  of  fourteen  years,  desirous  of  marrying, 
eloped  from  HoUister,  San  Benito  county,  and  went  to  tlie 
town  of  Monterey  for  the  purpose  of  being  married  upon  the 
high  seas,  this  course  being  adopted  with  a  vie  \\  to  escape  the 
difficulties  to  marriage  presented  by  the  girl'f,  tender  years. 
Upon  their  arrival  at  Monterey  the  sea  was  boisterous,  no  boat 
could  be  procured,  and  the  plan  was  abandoned.  It  was  there- 
upon orally  agreed  between  them  that  they  should  live  to- 
gether as  husband  and  wife,  and  that,  upon  their  return  to  the 
home  of  their  parents,  both  should  state  the  fact  to  be  that 
they  were  married  upon  the  sea.  Thereafter  they  returned 
to  Hollister,  and  to  all  their  friends  declared  the  fact  in  ac- 
cordance with  their  previous  agreement,  and  further  stated 
that  the  certificate  of  marriage  had  been  lost.  These  state- 
ments were  repeated  upon  all  occasions  for  many  months, 
and  it  was  only  a  short  time  prior  to  the  inception  of  this 
prosecution  that  the  true  facts  were  disclosed  to  the  i>ublic. 
Immediately  upon  their  return  to  Hollister  they  lived  together 
as  husband  and  wife,  represented  themselves  as  such  at  all 
times,  were  known  to  the  neighborhood  as  married  people,  and 
conducted  themselves  as  married  people  usually  do.     Their 


PEOPLE  V.  BEEVERS. 


141 


affairs  wore  conducted  upon  these  lines  for  nearly  four  years, 
durin/,'  which  time  a  child  was  born  to  them,  but  differences 
having  arisen,  a  separation  ensued,  and  subsequently  Beevers 
married  one  Clara  J3ates,  and  his  prosecution  and  conviction 
upon  a  charge  of  bigamy  were  the  result. 

It  is  claimed  that  the  foregoing  evidence  is  insufficient  to 
prove  such  a  marriage  between  these  parties  as  to  form  the 
basis  for  a  charge  of  bigamy,  and  as  one  of  the  grounds  for  such 
claim,  it  is  insisted  that  the  girl  was  but  fourteen  years  of  age  at 
the  time  the  agreement  of  marriage  was  entered  into,  and  con- 
sequently, was  incapable  of  giving  consent  thereto,  the  statute 
fixing  the  capacity  of  females  for  consent  at  the  age  of  fifteen 
years.  Appellant's  contention  can  not  be  sustained.  Section 
82  of  the  Civil  Code  declares  that  the  marriage  can  only  be  an- 
nulled by  the  party  who  did  not  possess  the  capacity  to  consent, 
and  expressly  recognizes  the  validity  of  the  marriage  if,  after 
attaining  the  age  of  consent,  such  party  freely  cohabits  with 
the  other  as  husband  or  wife.  In  Shaeffer  v.  State,  20  Ohio,  1, 
it  is  held  that  marriage  by  a  person  under  the  age  of  consent, 
if  followed  by  cohabitation  after  arriving  at  the  proper  age,  is 
sufficient  to  support  a  prosecution  for  bigamy.  In  other  states 
it  is  held  that  such  marriage,  unless  subsequently  disaffirmed 
by  positive  action,  is  sufficient  to  support  the  charge.  Walls  v. 
State,  32  Ark.  505;  Be(jgs  v.  State,  55  Ala.  108;  Cooleij  v.  State, 
Id.  I(i2.  In  the  present  case  these  parties  lived  together  as 
husband  and  wife  almost  three  years  after  the  girl  arrived  at 
the  age  of  consent,  and  a  full  ratification  of  their  prior  acts 
and  agreement  was  the  result.  We  have  been  cited  to  no  law, 
and  know  of  none,  that  would  entitle  a  guilty  husband  to 
escape  a  charge  of  bigamy  upon  such  a  pretext. 

It  is  insisted  that  a  marriage  sufficient  upon  which  to  base 
a  charge  of  bigamy  must  be  a  regular,  solemnized,  and 
authenticated  marriage,  as  provided  by  the  statute,  but  with 
this  contention  we  can  not  agree.  Section  281  of  the  Penal 
Code  declares  that  "  every  person  having  a  husband  or  wife 
living,  who  marries  any  other  person,  *  *  *  is  guilty  of 
bigamy."  In  this  case  the  second  marriage  is  conceded,  and 
defendant's  guilt  is  dependent  upon  the  fact  as  to  whether  or 
not  Lou  Jacobs  was  his  wife  at  the  time  he  contracted  the 
second  marriage.  Section  55  of  the  Civil  Code  declares: 
"Marriage  is  a  personal  relation,  arising  out  of  a  civil  contract, 


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142 


AMERICAN  CRIMINAL  REPORTS. 


mm 


CifeaL 


to  which  the  consent  of  parties  capable  of  making  it  is  neces- 
sary. Consent  alone  will  not  constitute  marriage ;  it  must  be 
followed  by  a  solemnization,  or  by  mutual  assumption  of  niari- 
tal  rights,  duties,  or  obligations."  It  will  thus  be  seen  that 
consent  to  marry,  followed  by  solemnization,  or  by  mutual 
assumption  of  marital  rights,  duties,  or  obligations,  constitutes 
marriage.  The  meaning  of  the  phrase  "  mutual  assumption  of 
marital  rights,  duties,  or  obligations"  was  exhaustively  dis- 
cussed in  the  case  of  Sharon  v.  Sharon,  79  Cal.  633.  It  was 
asrain  under  consideration  in  Kilhurn  v.  Kilhurn.  89  Cal,  40, 
23  Am.  St.  Rep.  447,  and  its  legal  signification  is  there  clearly 
and  succinctly  declared.  In  the  present  case  there  was  no 
solemnization,  but  there  was  consent,  followed  by  a  mutual 
assumption  of  marital  rights,  duties,  and  obligations ;  and, 
under  our  statute,  those  elements  conjoined  result  in  a  mar- 
riage as  binding  in  morals  and  in  law  as  though  it  was  solem- 
nized by  ])riest  or  judge.  In  the  one  case  we  have  consent, 
followed  by  solemnization;  in  the  other,  consent,  followed  l)y 
the  mutual  assumption  of  marital  rights,  duties,  or  obligations. 
The  crime  of  bigamy  is  committed  when  a  person  marries  who 
has  another  husband  or  wife  living  at  the  time.  The  mere 
form  of  the  first  marriage  is  entirely  immaterial.  The  vital 
inquiry  is,  is  such  a  person  a  husband  or  wife  ?  The  solution  of 
that  question  being  in  the  affirmative,  one  element  of  the 
crime  is  proven,  and  the  inquiry  passes  to  the  second  marriage. 
The  policy  of  the  law  recognizing  and  authorizing  this  form 
of  marriage  is  not  for  the  court  to  support  or  condemn.  It 
is  known  to  all  that  it  is  becoming  a  common  practice  with 
the  people,  entirely  too  common;  but,  if  bigamy,  adultery, 
and  Idndred  crimes  can  not  be  founded  upon  such  marriages, 
inducements  are  offered  to  the  lawless  which  can  not  fail  to  bo 
seized  upon,  and  which  will  undoubtedly  end  in  most  perni- 
cious results.  There  is  no  authority,  to  our  knowledge, 
opposed  to  the  foregoing  views  upon  this  question.  The  tlif- 
ferences  among  the  courts  have  arisen  alone  as  to  the  amount 
and  character  of  evidence  necessary  to  prove  the  marriage. 
It  is  conceded  everywhere  that  an  actual  marriage  must  be 
proven  to  support  the  charge  of  bigamy,  a  great  number  of 
the  cases  holding  that  cohabitation  and  repute,  standing  alone, 
are  not  sufficient  to  prove  the  marriage.  This  was  the  common 
law,  and  was  based  upon  the  principle  that  the  presurap- 


PEOPLE  V.  BEEVERS. 


143 


tion  of  innocence  of  crime   overcame    the  presumption    of 
marriage  following  cohabitation  and  re|)ute.      Many  cases 
hold  tliat  tlio  admissions  of  marriage  by  a  defendant,  coupled 
with  cohabitation  and  repute,  are  sufficient  to  sustain  a  find- 
ing of  actual  marriage.    State  v.  Hughes,  35  Kan.  C2G;  State 
V.  BrUton,  4  McCord,  256;   O'Neale  v.  Com.,  17  Grat.   583; 
Williaiiis  V.  State,  44  Ala.  24;  Scoggina  v.  State,  32  Ark.  205; 
State  V.  Goiice,  79  Mo.  600.     Section  1106  of  the  Penal  Code, 
which  jn'oscribes  the  character  of  evidence  that  may  be  intro- 
duced upon  the  charge  of  bigamy  to  prove  marriage,  is  directly 
in  line  with  the  principles  declared  in  the  foregoing  cases, 
althoui,'h  it  is  not  necessary  to  invoke  the  provisions  of  that 
section  in  the  present  case,  for  here  the  facts  disclose  an  actual 
marriage  in  accordance  with  section  55  of  our  statute.     The 
sufficiency  of  the  evidence  in  this  case  to  support  a  conviction 
for  bigamy  as  to  the  first  marriage  is  fully  indorsed  in  Hayes 
V.  Peojj/e,25  N.  Y,  390,  and  State  v.  BitticTc,  103  Mo.  183.     In 
Case  V.  Case,  17  Cal.  598,  following  the  law,  it  was  held  that 
repute  and  cohabitation  were  not  sufficient  to  prove  marriage, 
the  defendant  in  that  case  being  charged  with  adultery.     No 
statute  authorizing  marriage  in  the   manner  prescribed   by 
section  55  of  the  code  was  upon  the  books  when  the  question 
was  decided  by  the  court  in  that  case.     Neither  do  the  exi- 
gencies of  this  case  require  us  to  enter  into  a  discussion  as  to 
the  true  result  to  be  deduced  by  reason  of  the  presum  [)tion  of 
innocence  coming  in  conflict  with  the  presumption  of  marriage, 
arising  from  general  repute  and  cohabitation,  viewed  in  the 
light  of  section  55  of  the  statute ;  but  it  may  be  stated  that,  if 
the  principle  of  estoppel  is  ever  recognized  in  criminal  law, 
the  application  of  it  to  a  defendant  under  such  circumstances, 
in  the  interests  of  the  wronged  spouse,  the  unfortunate  ofi"- 
spring,  and  good  morals,  would  prove  a  most  wholesome  rule. 
The  court  committed  error  in  admitting  in  evidence  the 
judgment  roll  in  the  civil  action  of  Zou  Beevers  v.  John  A. 
Bcevers.      The  action  was  brought    against    defendant   for 
divorce,  and  a  default  was  taken.    At  the  time  the  judgment 
roll  was  offered  in  evidence  the  case  was  upon  appeal  to  this 
court,  and  it  follows  necessarily  that  the  findings  of  fact  and 
other  recitals  therein  contained  were  inadmissible  as  evidence 
upon  any  question  involved  in  this  prosecution.     Woodbury 


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AMERICAN  CRIMINAL  REPORTS. 


V.  Boioman.,  13  Cal.  034;  Murrmj  v.  Green,  64  Cal.  303.  Tlio 
adjudication  of  the  superior  court  that  these  parties  wero  hus- 
band and  wife,  and  a  decree  being  entered  dissolving  the  bonds 
of  matrimony,  were  matters  which  probably  had  great  weight 
with  the  jury.  The  question  as  to  the  marriage  was  the  contested 
issue,  and  this  evidence  pointed  directly  to  that  element  of  the 
Coming  from  a  source  so  grave,  it  must  have  ])rejudiced 


case. 

defendant's  right.     Let  the  judgment  and  order  be  reversed, 

and  the  cause  remanded  for  a  new  trial. 

We  concur:    Harrison,  J.;  Paterson,  J. 

Hearing  in  banc  denied. 

Note,— Pcior  marriage.— The  prior  marriage  is  an  essential  part  of  the 
corpus  delicti  of  the  crime  of  bigamy,  since,  unless  it  was  in  force  at  the 
time  tlie  second  marriage  was  contracted,  there  was  no  crime.  People  v. 
EdwanU,  25  N.  Y.  S.  831. 

Marriage  of  minor.— Can  one  who,  during  his  minority,  marries  without 
the  consent  of  his  parents  and  lives  and  cohabits  with  his  wife  for  any 
period,  be  legally  convicted  of  bigamy  uiwn  his  marrying  another  during 
the  lifetime  of  the  woman  he  first  married  ?  In  answering  this  question 
the  Supreme  Court  of  Wisconsin  in  State  v.  Cone,  57  N.  W.  50,  say:  "  The 
question  is,  was  the  first  marriage  void  or  voidable  only?  If  void,  then 
there  was  no  bigamy;  if  voidable  only  by  the  decree  of  a  court  of  compe- 
tent jurisdiction,  then  there  was  a  marriage  subsisting  until  such  decree 
was  rendered,  albeit  an  imperfect  one.  Speaking  of  such  a  marriage  it  was 
said  by  this  court  in  the  case  of  Eliot  r.  Eliot,  77  Wis.  634,  46  N.  W.  80(5: 
'This  marriage  is  an  absolute  nullity.  It  is  only  annulled  from  such 
time  as  shall  be  fixed  by  the  Judgment  of  the  court.  Rev.  St. ,  §  2350.  That 
time  may.  and  m  many  contingencies  should,  be  fixed  at  a  later  date  than 
that  of  the  marriage.  During  the  ti-'-e  intervening  the  marriage  is  valid.' 
This  language  was  used  advisedly,  and  is  supported  by  the  groat  weight  of 
authority.  We  see  no  reason  for  departing  from  it  now,  Beggs  v.  State, 
55  Ala.  108,  and  authorities  cited.  The  case  of  Shafher  v.  State,  80  Ohio 
1,  is  an  authority  to  the  contrary,  but  we  do  not  deem  it  well  supported 
either  in  reason  or  authority.  It  follows  that  the  question  submitted  nmst 
be  answered  in  the  affirmative."  See  The  Queen  ?.'.  Tolson,  8  Am.  Cr.  R.  59, 
and  note;  also  Davis  v.  Beasaii,  8  Id.  89,  and  note. 


STATE  V.  JOHNSON.  145 


State  v.  JonNsou. 

(4  Wash.  503.) 

Burglary  :  Indictvient— Ownership  of  room. 

One  wlio  has  no  other  place  of  abode  than  a  room  in  an  hotel,  for  which  he 
pays  rent  by  the  week,  and  in  which  he  keeps  his  personal  effects,  is  not  a 
^est  of  the  hotel,  but  has  an  interest  in  tho  room,  and  ownership  is 
properly  averred  in  him  in  an  indictment  for  burglary  of  the  room.  The 
indietiiu'iit  in  such  case  should  allege  that  it  is  the  dwelling  house  of  the 
roomer. 

Appeal  from  Superior  Court,  King  County;  T.  J.  Humes, 

Judge. 
George  Johnson  was  convicted  of  burglary,  and  appeals. 

Fishhach,  ITardin  <&  Meek,  for  the  appellant. 
John  F.  Ifiller,  prosecuting  attorney,  and  James  A.  Haight, 
for  the  State. 

Andkiis,  C.  J.  The  information  charges  the  defendant  with 
the  crime  of  burglary  in  entering,  in  the  night-time,  the  dwell- 
ing-house of  Walter  Bradley,  with  intent  to  commit  a  felony 
therein.  It  appears  from  the  evidence  that  the  building  in 
which  the  crime  is  alleged  to  have  been  committed  was  a 
hotel  and  boarding-house  in  the  town  of  Kent,  King  county, 
known  as  the  "  Central  House,"  kept  by  one  Pillman,  who 
did  not  reside  in  the  house,  but  lived  some  distance  away  in 
his  own  pi'ivate  dwelling;  that  Bradley  was  an  unmarried  man, 
and  a  resident  of  Kent,  and  for  some  time  prior  to  the  com- 
mission of  the  alleged  offense,  had  occupied  a  room  in  thi 
building  at  the  head  of  the  common  stairway,  for  which  he 
paid  Pillman  a  weekly  rental  in  advance;  that  he  kept  his 
personal  effects  in  his  room,  and  at  that  time  had  no  other 
place  of  abode;  that  at  about  three  o'clock  of  the  night  of  Au- 
gust 24,  1S91,  he  was  aroused  by  a  noise,  and  discovered  the 
defendant  in  the  room,  apparently  in  the  act  of  taking  a  valise 
which  had  been  left  lying  upon  the  floor;  and  that  the  defend- 
ant, before  entering,  had  removed  his  shoes  and  hat,  and  de- 
posited them  together  on  the  outside  of  the  door.  It  is  con- 
tended by  the  learned  counsel  for  the  defendant,  that  there  is 
lo" 


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AMERICAN  CRIMINAL  REPORTa 


a  fatal  variance  between  the  testimony  and  the  avorniciits  of 
the  information  as  to  tlio  ownership  of  the  room  in  qufstion. 
He  strenuously  insists  that  Bradley  was  a  mere  guest  at  the 
hotel,  and  that  the  room  occupied  by  him  should  have  been 
laid  in  the  information  as  the  dwelling-house  of  I'illinan. 
While  not  denying  that,  at  common  law,  the  chamln'r  of  a 
guest  at  an  inn  is  the  dwelling-house,  or  mansion-house  of  tiie 
inn-keeper,  the  learned  counsel  for  the  state  insists  that  tiie 
relation  of  landlord  and  guest  did  not  exist  in  this  instance; 
that  Bradley  was  not  a  guest  at  the  Central  House,  ami  that, 
therefore,  the  rule  as  to  guests  is  not  applicable. 

A  guest  is  defined  as  "  a  traveler  who  lodges  at  an  inn  or 
tavern  with  the  consent  of  the  keeper."  Black,  Law  Diet.,  tit. 
"  Guest."  But  while  a  guest  is  a  traveler,  it  is  not  necessary 
that  he  should  come  from  another  state  or  country,  or  from 
any  distant  place.  Any  person  going  from  his  own  home, 
whatever  the  distance  may  be,  and  applying  for  and  receiving 
accommodations  at  a  hotel,  is  a  traveler,  and  therefore  a 
guest.  Walling  v.  Potter,  35  Conn.  183.  '  But  "  if  a  i)crson 
comes  upon  a  special  contract  to  board  and  sojourn  at  an  inn, 
he  is  not,  in  the  sense  of  the  law,  a  guest,  but  is  deemed  a 
boarder."  Ilursh  i\  Byers,  29  Mo.  470.  See,  also,  Shoccraft  v. 
Bailey,  25  Iowa  553;  Zusk  v.  Belote,  22  Minn.  468.  From  the 
foregoing  decisions,  and  many  others  which  might  be  cited,  it 
will  be  seen  that  Bradley  was  not,  in  legal  contemplation,  a 
guest  at  the  Central  House  at  the  time  the  defendant  entered 
his  room.  The  reason  given  by  Lord  Hale  why  a  chamber  in 
an  inn  is  not  the  dwelling-house  of  the  guest,  was,  that  the 
guest  has  no  interest  in  his  chamber,  but  only  the  temporary 
use  of  it  for  his  lodgings.  Eodgers  v.  People,  86  N.  Y.  360. 
But  that  reason  does  not  apply  in  this  case,  for  Bradley  had 
an  interest  in  the  room  rented  by  him,  and  even  the  proprietor 
of  the  house  had  no  right  to  disturb  his  possession  thereof 
until  the  expiration  of  the  time  for  which  he  had  paid  for  the 
use  and  occupation  of  it.  Ho  had  no  other  house  or  place  of 
residence,  and  if  the  room  occupied  hy  him  was  not  his  dwell- 
ing-house, it  follows  that  he  had  no  dwelling-house  whatever. 
"We  think  the  ownership  was  properly  alleged  in  the  informor 
tion.  In  People  v.  St.  Clair,  38  Cal.  137,  it  was  held  that  the 
ownership  of  a  room  rented  from  one  who  had  supervision  and 
control  of  the  whole  house,  and  who  resided  therein,  was  prop- 


STATE  V.  JOHNSON. 


147 


erlv  lai<l  in  the  person  who  rented  it,  for  the  reason  that  "  the 
room  was  his  for  the  time  being."  See,  also,  Mason  v.  People, 
26N.  Y.  200. 

Upon  this  question  an  eminent  text-writer  on  criminal  law 
savs :  "According  to  the  strict  common  law  rule,  whore  the 
cliamhor  of  a  guest  at  an  inn  is  forced  open  and  his  goods 
stolen,  the  burglary  must  be  laid  in  tlie  dwelling-house  of  the 
landlord;  and  in  all  cases  where  the  occupier  has  the  transient 
use  merely,  and  no  interest  in  the  apartments  he  occupies,  it  is 
the  same.  But  if  the  lodgers  lease  their  apartments  for  definite 
periods,  the  old  rule  ceases  to  bo  apjilicable,  and  the  apart- 
ment may  be  laid  as  the  tenant's  dwelling."  1  Whart.  Cr.  L. 
(9th  Ed.),  §  802.  Even  under  the  "  strict  common-law  rule," 
the  chambers  in  colleges  and  inns  of  court  wore  held  to  be  the 
dwellings  of  the  occupants  so  far  as  their  burglarious  entry  is 
concerned,  and  the  same  rule  applied  to  chambers  hired  by  one 
person  in  the  house  of  another  for  lodgings  for  a  definite 
period  of  time.  Mason  v.  People,  siipni.  Bishop  says,  "  In 
burglary,  ownership  means  any  possession  which  is  rightful  as 
against  the  burglar."  2  Bish.  Cr.  Pro.,  §  137.  And  this  being 
so,  the  ownership  may  be  laid  in  the  occuj^ant  whose  posses- 
sion is  rightful  as  against  the  burglar,  though  unlawful  as 
against  the  person  claiming  title  to  the  property.  Id.,  §  138; 
Sinith  V.  People,  115  111.  17,  3  N.  E.  Rep.  733;  Houston  v.  State, 
38  Ga.  165.  The  further  point  is  made  by  appellant  that  the 
information  is  insufficient  in  not  alleging  that  the  building 
charged  to  have  been  burglariously  entered  was  within  the 
body  of  the  county.  But  we  think  the  objection  is  not  well 
taken.  The  burglarious  entry  of  the  house  is  alleged  to  have 
been  made  in  King  county,  and  that  is  a  sufficient  averment 
that  the  house  was  within  the  body  of  that  county.  We  think 
that  the  defendant  had  a  fair  trial,  and  was  rightfully  con- 
victed on  the  evidence,  and  the  judgment  of  the  court  below 
is  therefore  affirmed. 

Dunbar,  Scott,  Hoyt  and  Stiles,  J  J.,  concur. 

^OTE.~Oionership  of  Property.— In  Leslie  v.  State,  17  So.  555  (Fla).  it 
was  held  that  proof  of  special  or  temporary  ownership,  possession  or  control 
such  as  a  lessee  would  have  over  the  room  in  which  the  crime  was  committed, 
is  suflicient  to  sustain  an  allegation  in  the  indictment  that  such  lessee  was  the 
owner.   Justice  Taylor  announcing  the  decision  of  the  court  said:  "  The  law 


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AMERICAN  CRIMINAL  REPORTS. 


is  well  settlo.l  that  under  these  circumstances  the  ownership  of  the  ofrico  en- 
tered is  properly  alleged  to  be  in  him,  and  that  proof  that  he^implj-  octuiiies 
it  as  a  lessee  is  sulficient  to  sustain  the  ownerahip  as  laid  in  the  indictm.iu. 
In  this  class  of  cjises,  as  in  cases  of  larceny,  the  nececaity  for  any  alle^ution 
as  to  ownership  is  for  the  sake  of,  and  as  part  of,  the  description  of  the  of- 
fense." *  *  *  Com.  V.  Bowden,^  Gray,  lOB;  Peo2)lev.  St.  Clair, 'AS  Ca\. 
137;  Com.  v.  Thompson,  9  Gray,  108;  Houston  v.  State,  38  Ga.  165 ;  White 
V.  State,  49  Ala.  344;  Kennedy  v.  State,  31  Fla.  428. 

Putisession  of  stolen  prop<'.vty.—T\\e  court  in  Leslie  v.  State,  sujn-a,  said : 
"  The  true  rule  is,  that  where  a  party  found  in  possession  of  goods  re- 
cently stolen  directly  gives  a  reasonable  aiid  credible  account  of  how  he 
came  into  such  jwssession,  or  such  an  account  as  will  raise  a  reasonable 
doubt  in  the  minds  of  the  jury,  then  it  becomes  the  duty  of  the  state  to 
prove  that  such  account  is  untrue,  otherwise  he  should  be  acquitted.  The 
account  given  must  be  not  only  reasonable,  but  it  must  ba  crediiile,  or 
enough  so  to  raise  a  reasonable  doubt  in  the  minds  of  the  jury,  wlio  are  the 
judges  of  its  reasonableness  and  probability  as  well  as  of  its  crediliility. 
The  account  given  may  be  reasonable  and  highly  plausible,  and  yet  tlu;  jury 
may  not  believe  a  word  of  it  to  be  true.  In  the  latter  caie  they  would  iiave 
tiie  right  to  convict  upon  the  evidence  furnished  by  the  possession  of  the 
stolen  goods  alone,  even  though  the  state  had  not  put  in  any  proof  directly 
to  prove  the  falsity  of  the  account  given.  The  account  given  by  the  posses- 
sor of  goods  recently  stolen  as  to  how  he  acquired  such  possession  nmst  not 
only  be  reasonable,  but  it  must  be  credible,  or  enough  so  to  raise  a  reason- 
able doubt  in  the  minds  of  the  jury,  before  it  casts  upon  the  state  the 
burden  of  proving  its  falsity;  and  the  jury  are  the  sole  judges  of  its  reason- 
ableness and  credibility."  .Dillon  i.  People,  1  Hun  670;  4  Thomp.  &  C.  203; 
Jones  V.  Stole,  30  Miss.  653;  Pricv  v.  Com.,  21  Grat.  846;  Garcia  v.  State, 
26  Tex.  209;  Reg.  v.  Crou-Jmrsi,  4V  E.  C.  L.  370;  Belote  v.  State,  36  Miss. 
96;  Blaker  v.  State,  130  Ind.  203. 

Ownership  of  Building — Married  Woman. — Tliere  can  be  no  conviction  on 
a  count  in  an  indictment  laying  the  ownership  of  the  house  in  a  niairied 
woman  living  in  the  house  with  her  husband  whom  the  law  presumes  tw  he 
the  head  of  the  family.    Jackson  v.  State,  102  Ala.  167. 

What  constitutes. — In  order  to  constitute  burglary,  the  intent  to  steal  or 
commit  a  felony  (to  steal,  in  the  present  case,  as  that  is  the  only  intent 
charged  in  the  indictment)  must  have  existed  at  the  time  of  the  breakinf; 
and  entering.  If  this  intent  was  not  formed  in  the  mind  of  the  ofTender 
until  after  the  breaking  and  entering  were  complete,  there  w.-xs  nt)  iiui- 
glary.  The  charge,  however,  by  which  the  defendant  attemi)ted  to  have 
this  principle  presented  to  the  jury  was  .so  drawn  that  the  court  could  luit 
do  otherwise  than  refuse  it.  It  instructs  that  the  intent  to  steal  must  have 
existed  "before,  and  not  after,"  the  di-fendant  entered  the  house.  This 
insti'uction  was  calculated  to  lead  the  jury  to  believe  that  although  the 
intent  to  steal  may  have  existed  at  the  time  of  the  breaking  and  enterinj;, 
yet,  if  it  did  not  exist  after  the  house  was  entered,  there  would  be  no  bur- 
glary. Nor  is  it  essential  to  the  crime  of  burglary  that  the  intent  spoken  of 
shall  exi.st  before  the  breaking.  It  nuist  be  ccmcurrent  with  the  breaking 
and  entering,  and  inay  he  formed  at  the  moment  of  time  the  breaking 
occurs.    Jackson  v.  State,  102  Ala.  167. 


SHIELDS  V.  STATE.  liQ 

Shields  v.  Statb. 
(104  Ala.  35.) 
Cakryinq  Weafons:    Evidence  illegally  obtained. 

1.  On  trial  for  carrying  concealed  weapons,  where  it  appeared  that  a  pistol 

was  found  concealed  on  defendant's  person  after  a  forcible  search  by  an 
officer,  although  such  search  was  unlawful,  the  evidence  so  obtained  is 
adniissilile  against  the  defendant. 

2.  The  admission  of  evidence  so  obtained  does  not  conflict  with  the  consti- 

tutional guaranty  that  no  one  shall  be  compelled  to  give  evidence 
against  liiniself. 

3.  A  r('<iuiri>inent  by  a  sheriff,  aa  jailer,  that  all  persons  mast  be  searched 

before  being  allowed  to  visit  prisoners,  is  reasonable,  but  on  refusal  to 
conii)ly  the  sheriff  can  not  search  a  person  against  his  will. 

Appeal  from  Wilcox  County  Court;  Joseph  T.  Beck,  Judge. 
Bryant    Shields    was    convicted   of    carrying  a  concealed 
weapon,  and  aj)i)eals.     Reversed. 

The  state  introduced  as  a  witness  M.  E.  Curtis,  sheriff  of  "Wil- 
cox county,  who  testified  that  the  defendant,  with  two  others, 
came  to  the  jail  of  Wilcox  county,  and  asked  to  be  allowed  to 
see  a  cousin,  who  was  then  a  prisoner  confined  in  said  jail;  that 
said  Curtis  told  them  that  they  could  not  go  into  the  prison 
part  of  the  jail  until  he  had  searched  them;  that  one  of  the 
party  was  searched,  and  that  when  the  defendant  halted  the 
witness  Curtis  remarked,  "  If  you  wish  to  go  in,  come  on,  and 
if  you  do  not  wish  to  go,  then  go  out; "  that  the  defendant 
then  started  to  go  into  the  prison  part  of  the  jail;  and  that 
tliereupon  the  sheriff  took  liold  of  him,  and,  against  his  con- 
sent, searched  him,  and  found  a  pistol  concealed  about  his  per- 
son.   The  defendant  objected  to  this  testimony  on  the  grounds 

(1)  that  the  sheriff  had  no  right  or  authority  to  search  him; 

(2)  becr.use  the  searching  of  defendant's  person,  and  finding 
the  pistol  concealed,  by  the  said  sheriff,  was  without  his  con- 
sent or  j)ormission,  and  therefore  the  testimony  relating  thereto 
is  inadmissible.  The  court  overruled  the  objection  and  mo- 
tion of  the  defendant,  and  to  this  ruling  the  defendant  duly 
excepted.  The  defendant,  testifying  in  his  own  behalf,  stated 
that  the  pistol  which  was  found  upon  his  person  was  a  broken 
pistol,  which  he  was  carrying  to  the  gunsmith  to  be  repaired, 


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150 


AMERICAN  CRIMINAL  REPORTS. 


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and  that  the  said  sheriff  searched  him  against  his  consent. 
Upon  the  introduction  of  all  the  evidence  the  court  charged  the 
jury  that  if  they  believed  the  evidence  they  must  find  tiie  df. 
fondant  guilt} .  The  defendant  duly  excepted  to  the  giving  of 
this  charge. 

Feter  M.  Horn,  for  appellant. 

Will.  L.  Mai'tbi,  Attorney  General,  for  the  State. 

Brickell,  C.  J.  The  proposition  underlving  the  objections 
to  the  admissibility  of  the  evidence  of  the  discovery  of  the  pis- 
tol concealed  about  the  person  of  the  defendant,  and  which  is 
pressed  in  the  argument  of  counsel,  is  that  the  search  was 
unauthorized  and  ilhigal.  and  as  it  was  unauthorized  and 
illegal,  the  admission  of  evidence  obtained  by  it,  to  fix  the  guilt 
of  a  criminal  offense  upon  the  person  searched,  is  violative  of 
the  constitutional  guaranty  that  the  accused  shall  not  be  com- 
pelled to  give  evidence  against  himself,  and  of  the  further  guar- 
anty "  that  the  people  shall  be  secure  in  their  persons,  homes, 
papers  and  possessions,  from  unreasonable  seizure  orsearclies," 
etc.  Kindred  propositions,  in  varying  forms  and  under  varying 
facts,  have  been  drawn  to  the  attention  and  consideration  of 
this  court.  Chafstang  v.  State,  83  Ala.  29,  3  South.  3()4;  ferry 
V.  State,  90  Ala.  635,  8  South.  G(U;  Scott  v.  State.  94  Ala.  80,  10 
South.  505;  French  v.  State,  94  Ala.  93, 10  South.  553;  Sewell  v. 
State  (Ala.),  13  South.  555.  In  neither  of  these  cases  was  the 
search,  or  the  mode  in  which  the  evidence  was  obtained, 
deemed  illegal.  In  Terri/  v.  State,  snjva,  which,  like  the  case 
before  us,  was  an  indictment  for  the  offense  of  carrying  con- 
cealed weapons,  the  court  observed :  "We  need  not  say  what 
would  be  our  ruling  if  the  pistol  had  been  discovered  by  the 
officer  in  a  search  of  the  defendant's  person,  or  if  the  defendant 
had  surrendered  the  j)istol  in  obedience  to  the  comnumd  of  the 
officer  having  him  in  charge.  The  question  is  not  presented, 
and  we  leave  it  undecided."  In  the  later  case  {Sewell  v.  State, 
nujjra) — a  like  indictment — the  court  said:  "We  presume 
the  objection  [to  the  admissibility  of  the  eviilence]  is  based 
upon  the  proposition  that  the  discovery  of  the  guilt  was 
brought  about  by  the  unlawful  exercise  of  official  autlnjrity 
and  j)ower  on  the  ])art  of  the  constable,  and  that  it  would  be 
against  public  i)olicy,  if  not  an  invasion  of  the  constitutional 


,KiW-  y 


nt. 
Jie 
(lo- 
ot 


SHIELDS  V.  STATE. 


151 


immunity  of  the  citizen,  to  suffer  information  so  obtained  to  be 
used  agiiinst  tlie  defendant.  This  case  does  not  call  for  any 
decision  on  that  subject,  and  we  declare  no  rule  touching  the 
admissiliility  of  evidence  so  obtained."  If,  as  is  insisted,  the 
search 'it  the  person  of  the  defendant  was  unauthorized  and 
ill,  the  question,  a  decision  of  which  was  heretofore  pre- 
termitted, is  now  unavoidable,  and  that  it  was  unauthorized 
ard  iHof^iil  we  can  not  doubt.  The  sheriff  is  the  jailer,  having 
tiieloLral  custody  and  charge  of  the  county  jail,  and  of  the 
piiso  u-ein  confined.     He  may  commit  the  custody  and 

cbargt;  to  a  jailer  of  his  appointment,  who  becomes  his  deputy 
or  substitute,  for  whose  acts  he  is  civilly  responsible.  Cr. 
Code,  §  4^535,  Charged  with  the  dut}-^  of  protecting  and  pre- 
serving the  jail,  and  of  keeping  the  prisoners  safely  until  of 
thfir  lustody  he  is  relieved  by  legal  authority,  of  necessity,  the 
jailer,  wiiother  he  be  the  sheriff  or  a  substitute  of  his  appoint- 
ment, has  a  large  discretion  in  determining  at  what  time,  under 
what  circumstances,  and  what  ])ersons,  not  having  legal  au- 
thority, he  will  j)ermit  to  enter  the  jail  or  to  have  access  to  the 
prisoners;  a  discretion  it  is  not  contemplated  he  will  exercise 
arbitrarily  or  capriciously,  but  which  at  last  he  must  exercise 
according  to  his  own  conscience  and  judgment,  uncontrolled  by 
th5  conscience  and  judgment  of  others.  If  he  apprehends  in- 
jury to  tlie  jail,  or  the  introduction  therein  of  things  forbidden, 
or  the  instrumentalities  of  escape,  or  detriment  to  a  prisoner, 
he  may  require  whoever  may  seek  admission  into  the  jail  to 
submit  their  ]>ersons  to  a  proper,  orderly  examination  or  search. 
The  examination  or  search  must  be  voluntary  on  the  part  of 
such  persons.  If  they  do  not  consent,  admission  to  the  jail  or 
access  to  the  prisoners  may  be  refused.  If  they  have  entered, 
they  may  be  required  to  depart.  If  they  persist  in  remaining, 
they  may  be  treated  as  trespassers  and  ejected,  the  jailer  using 
no  more  force  than  is  necessary  to  eject  them.  But  h;  is  with- 
out legal  authority,  by  force,  to  search  or  examine  them,  or  to 
comjjel  them  to  submit  their  persons  to  search  or  examination, 
even  though  he  may  suspect  them  of  crime  or  of  criminal  pur- 
poses. If,  by  force,  he  makes  search  of  their  persons,  or  com- 
pels them  to  submit  to  it,  he  becomes  a  trespasser,  and  for  the 
wrong  is  civilly  answerable;  and  he  commits  an  indictable  mis- 
demeanor, the  offense  being  aggravated  because  of  his  official 
relation,  and  the  abuse  of  its  rightful  powers. 


f\ 


J^-'  i 


152 


AMERICAN  CRIMINAL  REPORTS. 


!    -m  .1^1 


While  it  is  true  the  search  of  the  defendant  was  ^'ith- 
out  legal  justification,  a  trespass  and  an  indictable  misde- 
meanor, we  know  of  no  principle  or  theory  upon  which  the 
state  may  be  deprived  of  the  right  to  employ  the  evidence  of 
a  criminal  offense  thus  obtained.  As  is  observed  by  the  Su- 
preme Court  of  Illinois  in  Gindratv.  People,  13S  111,  111,  27 
N.  E.  10S5,  "  Courts,  in  the  administration  of  the  criminal 
law,  are  not  accustomed  to  be  over  sensitive  in  regard  to  the 
sources  from  which  the  evidence  comes  and  will  avail  tlioni- 
selves  of  all  evidence  that  is  competent  xnd  pertinent  and  not 
subversive  of  some  constitutional  or  legal  right."  The  state 
had  no  connection  with,  and  had  no  agency  in,  the  wrong 
committed  by  the  sheriff.  The  law  apix>ints  the  i*omedy  for 
the  redress  of  the  wrong,  but  the  exclusion  of  the  evidence 
criminating  the  defendant  is  not  within  the  sco}>e  of  the 
remedy,  or  the  measure  of  redress.  Evidence  is  not  infre- 
quently obtained  by  mothotls  which  are  reprehensible  in  good 
morals,  offensive  to  fair  dealing,  subjecting  it  to  unfavomble 
inferences  the  party  relying  upon  it  must  neutralize,  to  entitle 
it  to  full  credence.  And  evidence  is  sometimes  obtained  under 
circumstances  which  meet  with  the  unqualified  disapproi)ation 
of  the  courts.  The  evidence,  however  unfairly  and  illegally 
obtained,  is  not  subject  to  exclusion,  if  it  bo  of  facts  in  them- 
selves relevant,  except  when  a  party  accused  of  crime  has  been 
compelled  to  do  some  positive,  allimative  act  inculpating  him- 
self, or  an  admission  or  confession  has  been  extorted  from  \m\\ 
by  force,  or  drawn  from  him  by  ajipliances  to  his  ho]>es  or 
fears.  1  Greenl.  Ev.  §  254a ;  Coyn.  v.  Dana,  2  Mete.  (Mass.), 
329-337 ;  State  v.  Flynn,  3G  N.  II.  04;  Giiidmt  v.  l\<>ph\  138 
111.  103,  27  N.  E.  1085.  The  extrajudicial  confessions  or  admis- 
sions of  a  defendant  charged  with  crime  are  received  in 
evidence  with  a  degree  of  caution  not  extended  to  any  otlier 
species  of  evidence.  Before  admitting  them  the  court  must  l)o 
satisfied  that  they  were  made  voluntarily — free  from  compul- 
sion or  appliances  of  hope  or  fear  to  the  mind  of  the  accused. 
Yet  if  a  confession  or  admission  be  made  involuntarily,  under 
circumstances  which  compel  its  exclusion  as  evidence,  and 
from  it  a  knowledge  of  material,  relevant  facts  is  derived, 
these  facts  are  admissible  evidence.  1  Greenl.  Ev.,  §  231 ; 
Drister  v.  State,  2G  Ala.  107;  Sampson  v.  State,  54  Ala.  241. 
Confessions  obtained  by  artifice  or  deception  or  falsehood,  how- 


ii    i 


SHIELDS  V.  STATE. 


153 


ever  reprehensible  and  dishonorable,  if  voluntary,  are  also 
admissible  evidence.  Whart.  Cr.  Ev.,  §  670;  1  Eosc.  Cr.  Ev., 
(8th  Ed.),  81 ;  J^ing  v.  State,  40  Ala.  314;  People  v.  Barker, 
60  Midi.  277,  27  N.  W.  539 ;  Jleldt  v.  State,  20  Neb.  492,  30 
X.  W.  <I20.  The  evidence  of  an  eavesdropper  as  to  statements 
made  by  tlie  defendant,  when  he  was  free  from  all  influences 
affecting  tlie  admissibility  of  such  statements,  has  been  re- 
ceived. The  court  said :  "  The  defendant  has  no  cause  of  com- 
plaint, either  because,  if  an  eavesdropper,  the  witness  may 
possibly  not  have  heard  all  that  was  said  in  the  conversation 
to  which  he  testified,  or  on  the  ground  that  eavesdropping  is 
disreputable  in  itself,  or  was  an  otfense  at  common  law."  Peo- 
ple V.  Cotta,  49  Cal.  166,  The  eviilence  of  detectives  feigning 
to  be  accomplices,  obtaining  and  practicing  upon  the  confi- 
dence of  the  accused,  is  received,  and  so  is  the  evidence  of  spies. 
The  manner  of  obtaining  the  evidence  is  directed  to  its  credi- 
bility, not  to  its  admissibility.  Stale  v.  MoKean,  36  Iowa 
343;  W/'i(jht  v.  State,  7  Tex.  App.  574  ;  People  v.  Barker,  60 
Mich.  277,  27  N.  W.  539 ;  Glndrat  v.  People,  supra.  In  the 
1  itter  case  the  evidence  was  obtained  by  an  unlawful  intrusion 
by  a  detective  into  and  search  of  the  dwelling  place  of  the  de- 
fendant. 

The  guaranty  of  the  constitution  that  no  person  accused  of 
crime  shall  be  compelled  to  give  evidence  against  himself 
corresjJDnds  to  and  is  drawn  from  the  maxim  of  the  common 
law,  ''^Nemo  tenetur  se  ipsam  accasare;  "  and  it  forever  removes 
from  the  sphere  of  judicial  investigations  any  and  nil  couipul- 
sion  of  ]iorsons  accused  of  crime,  either  by  subjecting  them 
to  physical  torture  or  inquisitorial  examinations,  to  Avhich 
they  have  been  subjected  in  some  countries.  2  Story,  Const., 
§  17b.s.  Admissions  or  confessions  imputed  to  them  are 
inadmissible  as  evidence,  except  under  the  limitations  and 
conditions  to  which  we  have  referred.  It  is,  as  we  have 
seen,  of  the  very  essence  of  their  admissibility  that  they  should 
be  voluntary,  proceeding  from  the  unrestrained  volition  of 
the  accused.  The  defendant  made  no  admission  or  confession; 
he  was  passive,  the  unresisting  victim  of  unlawful  violence; 
and,  if  lie  had  made  an  admission  or  confession,  its  exclusion, 
because  not  free  and  voluntary,  would  have  been  unavoidable. 
It  is  not  that  which  he  has  said  or  done  which  is  supposed  to 
otfend  the  constitutional  guaranty,  but  tlie  independent,  unlaw- 


mm 


tiri' 


154 


AMERICAN  CMMINAL  REPORTS. 


fulacts  of  the  sheriff,  by  and  through  which  it  was  discovered 
that  he  bore  upon  his  person  the  "  mute  witness  "  of  a  criininul 
offense.    We  quote  with  approbation  from  the  opinion  of  the 
Supreme  Court  of  New  Hampshire  in  State  v.  Fii/mi,  mipra: 
"  It  seems  to  us  an  unfounded  idea  that  the  discoveries  niiide 
by  the  officers  and  their  assistants  in  the  execution  of  i)r()cess, 
whether  legal  or  illegal,  or  where  they  intrude  upon  a  iimn's 
privacy  without  any  legal  warrant,  are  of  the  nature  of  ad- 
missions made  under  duress,  or  that  it  is  evidence  furnished 
by  the  party  himself  upon  compulsion.     The  informaticjii  thus 
acquired  is  not  the  admission  of  the  party,  nor  evidence  given 
by  him,  in  any  sense.     The  party  has  in  his  power  coitain 
mute  witnesses,  as  they  may  be  called,  which  he  endeavors  to 
keep  out  of  sight,  so  that  they  may  not  disclose  the  facts  which 
he  is  desirous  to  conceal.     By  force  or  fraud  access  is  gained 
to  them,  and  they  are  examined,  to  see  what  evidence  they 
bear.     That  evidence  is  theirs,  not  their  owner's.     If  a  ]mrty 
should  have  the  power  to  kee])  out  of  sight  or  out  of  reach 
persons  who  can  give  evidence  of  facts  he  desires  to  sui)|)ress, 
and  he  attempts  to  do  that,  but  is  defeated  by  force  or  cun- 
ning, the  testimony  given  by  such  witnesses  is  not  his  testi- 
mony, nor  evidence  which  he  has  been  com])elled  to  furnish 
against  himself.     It  is  their  own.     It  does  not  seem  to  us  pos- 
sible to  establish  a  sound  distinction  between  that  case  and 
the  case  of  the  counterfeit  bills,  the  forg(ir's  implements,  the 
false  keys,  or  the  like,  which   have  been  obtained  by  siinihir 
means.     Tlie  evidence  is  in  no  sense  his."     The  case  of  Com. 
V.  Dana^i  supra,  \ydi%oit\\Q?,(i\7A\VQ  of  lottery  tickets  illegally 
kept  for  sale.     The  seizure  was  made  under  a  search  warrant 
asserted  to  be  illegal  and  void.     The  court  sustaincMl  the  valid- 
ity of  the  warrant,  but  in  answer  to  the  objections  proceeding 
on  the  invalidity  of  the  warrant,  and  the  consequent  illegality 
of  the  search,  said:     "Admitting  that  the  lottery  tickets  and 
materials  were  illegally  seized,  still  this  is  no  legal  objection 
to  the  admission  of  tliem  in  evidence.     If  the  search  warrant 
were  illegal,  or  if  the  officer  serving  the  warrant  exceeded  his 
authority,  the  party  on  whose  complaint  the  warrant  issued, 
or  the  olfictir,  would  be  responsible  for  the  wrong  done;;  but 
this  is  no  good  reason  for  excluding  the  papers  seized  as  evi- 
dence, if  they  were  pertinent  to  the  issue,  as  they  unijuestion 
ably  were.     When  papers  are  offered  in  evidence  the  court  can 


SHIELDS  V.  STATE. 


155 


take  no  notice  how  they  were  obtained — whether  lawfully  or 
unlaw t'lilly — nor  would  they  form  a  collateral  issue  to  deter- 
mine that  question.  This  point  ^•as  decided  in  the  cases  of 
Lef/M  V.  ToUervey,  14  East  302.  anJ  Jortlan  v.  Lewis,  Id.  306, 
note;  and  we  are  entirely  satisfied  that  the  principle  on  Avhich 
these  cases  wore  decided  is  sound  and  well  established."  We 
adliere  to  the  proposition  to  be  extracted  from  the  authorities 
to  wliich  we  have  referred — that  howevoj*  unfair  or  illegal 
may  Ijc  the  methods  by  which  evidence  may  be  obtained  in  a 
criminal  case,  if  relevant,  it  is  admissible,  if  the  accused  is  not 
compelled  to  do  any  act  which  criminates  himself,  or  a  con- 
fession or  admission  is  not  extorted  from  him,  or  drawn  from 
him  by  apj^ealing  to  his  hopes  or  fears.  The  objections  to 
tiie  admissibility  of  the  evidence  were  properly  overruled. 

The  instruction  given  the  jury  is  erroneous.  I  doubt  the 
))ropriety  of  such  an  instruction  in  an\'  criminal  case,  whether 
it  be  of  felony  or  misdemeanor.  There  can  be  but  little  of 
necessity  for  it,  and  it  seems  to  me  the  better  practice  is  for 
the  court  to  state  the  law,  leaving  the  effect  of  the  evidence 
wholly  to  the  consideration  and  determination  of  the  jury. 
Such  instructions  have,  however,  received  the  approval  of  this 
court,  and  I  yield  to  precedent,  whatever  of  doubt  I  may  have 
as  to  their  propriety.  If  such  an  instruction  be  given,  it  must 
not  l)e  exi)ressed  in  the  terms  which  would  be  appropriate 
in  a  civil  case.  A  preponderance  of  evidence,  though  it  may 
not  l(>ave  the  minds  of  the  jury  free  from  reasonable  doubt, 
retjuires  a  verdict  in  a  civil  case.  IJut  in  criminal  cases  there 
must  1)6  the  exclusion  of  all  reasonable  doubt,  to  authorize  a 
conviction.  "  Neither  a  more  i>re|)onderance  of  evidence,  nor 
any  weight  of  preponderant  evidence  is  sufticiL-nt  for  the  pur- 
pose, unless  it  generate  full  belief  of  the  fact,  to  the  exclusion 
of  all  reasonable  doubt."  3  Groonl.  F]v.  §  'IW.  This  marked 
diirerenc(3  between  the  (luantity  of  evidence  which  will  sui>|)ort 
a  vei'dict  in  civil  ana  criminal  cases  must  be  olworved  in  in- 
structing the  jury.  The  evi'(UM\ce  ma}"^  have  been  believed, 
and  vet  it  may  not  have  excluded  from  the  minds  of  the  jury 
all  reasonable  doubt.  As  was  said  by  Stone,  C  J.,  in  lihea  v. 
State  (Ala.),  l-i  South.  853,  "  Relieving  from  the  testimony 
that  the  facts  exist  is  not  enough.  The  belief  must  be  so  strong 
as  to  leave  no  reasonable  doubt,  of  its  truth."  See  also  7V<'/'- 
mu  V.  State  (Ala.),  13  South.  550;  Jleath  v.  Stitte,  Id.  081).     For 


i         : 


1 1' 


150 


AMERICAN  CRIMINAL  REPORTS. 


if 


the  error  in  this  instruction  the  judgment  must  be  reversed 
and  the  cause  remanded.  The  defendant  will  remain  in  cus- 
tody until  discharged  by  due  course  of  law.  Eeversed  and 
remanded. 

^oTE.— Deadly  icenpon.—X  razor  ia  a  deadly  weapon  witliin  a  statute 
prohibiting  the  carrying  of  such  weapons  concealed  upon  the  purson. 
Tmux  V.  Com.  (Ky.  Supr.  Ct.),  14  Ky.  L.  Ref>.  299. 

Justification. — To  justify  a  person  in  carrying  concealed  weapons,  lie 
nnist  bo  tiireatened  with  an  attack,  but  he  need  not  anticipate  tliat  the  at- 
tack will  occur  at  a  particular  time,  and  go  armed  only  at  such  time,  iiiid- 
dith  V.  State,  70  Miss.  250. 

The  fact  that  a  weapon  is  drawn  in  aelf-defense  does  not  exempt  the  one 
drawing  it  from  indictment  for  unlawfully  carrying  arms.  Miller  v.  Stale, 
33  Tex.  Cr.  Rep.  319. 

Where  one  is  armed  with  a  revolver  unlawfully,  he  is  liable  for  any  inju- 
ries he  inflicts  with  the  weapon,  and  it  is  immaterial  that  the  persMjn  injured 
wius  consenting  to  his  being  so  armed  and  to  his  use  of  the  revolver.  Sluty 
V.  Thomimm,  59  Wis.  540,  followed;  Evans  v.  Waite,  83  Wis.  280. 

It  is  no  defense  to  a  prosecution  for  carrying  a  pistol  that  defendant  was 
told  "by  a  friend  that  parties  whose  names  she  refused  to  give  were  plotting 
to  kill  him;  it  not  being  shown  that  defendant  had  had  any  trouble?  witli  any 
one  except  his  friend's  mother,  who  objected  to  his  calling  on  her.  Avant 
V.  State,  25  S.  W.  1073. 

Tlie  fact  that  one  who  carries  a  concealed  weajxjn  does  so  with  the  pur- 
pose of  selling  it  does  not  excuse  his  act.  State  v.  Harrison,  98  N.  0.  (io"), 
overruled;  State  v.  Dixon,  114  N.  C.  850,  in  which  case  Justice  Clark  said: 

Tl.c  defendant  carried  the  pistol  concealed  about  his  person,  off  his  own 
premises.  The  criminal  intent,  in  such  cases,  is  the  intent  to  carry  tlie 
weai)on  concealed.  The  matter  set  up  in  defense  is  not  sufficient,  and, 
upon  the  defenc'ant's  own  testimony,  he  was  guilty.  As  there  seems  a  mis- 
conception, to  bjme  extent,  of  the  authorities,  it  may  be  well  to  review 
them.  In  State  v.  Speller,  86  N.  C.  697,  the  act  forbidding  the  carrying  of 
concealed  weapons  wiis  held  constitutional;  and  it  was  further  held  tliat 
the  party  would  be  guilty  of  violating  the  act,  though  he  carried  the  wcaiion 
for  self-protection,  in  conse<iuence  of  threats  of  vif)lence.  In  State  v.  Wood- 
fin,  87  N.  C.  526,  it  was  held  no  defense  to  show  that  the  conei-aled  weajHjn 
was  carried  for  the  purpose  of  hunting.  In  State  v.  Oilbert,  Id.  527,  it  was 
held  that  the  presumption  of  guilty  intent,  from  the  fact  of  the  weapon  be- 
ing concealed,  was  rejjutted  by  the  express  finding  of  the  jury,  in  the 
special  verdict,  that  t^Nere  was  no  guilty  intent.  There  a  mercliant  had 
Ixjught  a  pistol  in  his  trade,  and  was  carrying  it  from  one  store  to  another. 
"  Thoughtlessly,"  as  the  court  says,  he  put  it  in  his  pocket,  without  intend- 
ing to  conceal  it.  The  guilty  intent,  it  is  there  said,  is  "  the  i)urpose  to 
carry  it  bo  it  may  not  be  seen;"  and  that  purpose,  the  jury  found,  did  not 
exist  in  that  case.  This  decision  has  been  much  misundersttx)d.  In  State 
V.  lirodnax,  91  N.  C.  543,  it  was  held  that  one  was  not  guilty  who  was 
merely  carrying  to  the  owner  a  pistol  for  which  he  had  been  sent,  since  the 
offense  was  the  wearing  or  carrying  of  a  concealed  weapon,  which  the 
bearer  might  use  on  an  emergency.  This  purports  to  he  based  upon  Gilbert's 
Case,  supra,  but  in  fact  was  an  extension  of  the  principle  of  that  case,  car- 


SHIELDS  V.  STATE. 


157 


ricd  to  its  oxtromo  limit.  It  can  only  be  eustnined  on  the  Kround  that  the 
party  was  not  intending  to  carry  a  weapon  at  all,  but  was  simply  convoying 
a  piece  of  merchandise,  as  an  express  messenger  might  carry  a  pistol  or 
riAe  in  a  box  or  case,  in  the  line  of  business.  In  State  v.  Harrsion,  93  N.  C. 
C05,  it  W!is  held  that  if  the  defendant  carried  the  weapon  concealed  on  his 
poreon,  but  testified  that  he  did  so  for  the  purpose  of  trading  it  off,  this  was 
cvicloncc  to  rebut  the  intent,  and  should  have  been  submitted  to  the  jury. 
After  tlie  fullest  consideration,  and  with  deference  to  the  eminent  judge 
who (Kli\ ereJ  the  opinion,  we  can  not  tliink  so.  Nor  do  we  concur  in  the 
reason  ^iven— that  it  was  "  on  all  fours"  with  Gilbert's  Caae.  In  Gilbert's 
CUse  tlie  jury  found  there  was  no  criminal  intent,  i.  e.,  no  intent  to  carry 
the  \vi'a[)on  concealed ;  it  being  a  sample  pistol  thoughtlessly  put  in  the 
pocket  of  the  overcoat  by  the  merchant  purchaser,  and  carried  from  one 
store  to  another,  to  be  packed  up  with  other  purchases.  In  Harrison's 
Case,  the  defendant  purposely  and  intentionally  carried  the  weapon  con- 
ceaU'fl.  There  was  full  opportunity  to  use  it,  if  occasion  offered,  and  the 
defendiint's  act  came  within  the  spirit  and  letter  of  the  statute.  There 
wius  IK)  reason  why  the  pistol  could  not  have  been  carried  openly,  as  the 
deft'ndiint  could  have  legally  carried  it.  This  would  have  given  better 
opportunities  of  negotiating  a  sale  than  the  concealed  carriage  of  it. 

Having  said  this  much,  it  is  unnecessary  to  say  more  than  that  his  honor 
correctly  charged  the  jury,  in  the  present  case,  "that  if  one  could  borrow- 
er procure  a  pistol  to  sell,  or  convey  it  alnjut  with  him  from  place  to  ])lace 
during  a  period  of  several  months,  trying  to  sell  it,  and  selecting  public  days 
for  the  ])urpose  as  well,  and  shooting  somtsiive  times  on  a  picnic  occasion, 
the  statute  would  be  a  dead  letter;  that  upon  the  whole  evidence,  if  believed, 
the  defendant  was  guilty."  This  wa.s,  in  effect,  a  charge  that  there  was  no 
evidenre  HuHicient  to  go  to  the  jury  to  rebut  the  presumption  of  guilt  which 
tiic  statute  raises  from  the  iK)sseHHi()n  about  his  peraon  of  a  deadly  weajion 
off  ones  own  premises.  Stdte  v.  McMunus,  8tt  N.  C.  555.  The  carrying  a 
concealed  weajxjn  can  not  be  excused  because  carried  in  self-di'fense,  or  for 
hunting.  Of  course,  therefore,  it  can  not  be  excused  if  carried  for  the  pur- 
pose of  peddling  it  off,  with  all  the  incidental  opportunities  of  use.  To  so 
hold  would  '>■'  ;i  virtual  and  effective  repeal  of  the  st.atute.  The  presump- 
tion may  be  rebutted  by  an  express  finding  that  there  was  no  guilty  intent, 
as  wliere  the  pistol  was  carried  from  one  store  to  another  to  be  jiacked  up, 
without  any  thought  or  intent  to  conceal  it,  or  where,  under  some  circum- 
stances, it  is  carried  by  a  messenger,  to  be  delivered  to  the  owner  or  pur- 
chaser. But  mattera  of  excase  can  bo  extended  no  further,  with  safety, 
and  a  due  regard  to  the  integrity  of  the  statute.  As  was  said  in 
McManus'  Case,  supra,  the  statute  "  must  receive  such  reasonable  construc- 
tion as  w  ill  effi'ctuate  its  pur|)ose."  State  v,  Harrinon,  su2)ra,  is  overruled. 
In  trials  for  this  offense  it  should  be  Iwrne  in  mind  that  the  guilty  intent  is 
the  intent  to  carry  the  weapon  concealed,  and  does  not  depend  upon  the 
intent  to  use  it.  The  object  of  this  statute  is  not  to  forbid  the  carrying  of 
a  deadly  weapon  for  use,  but  to  prevent  theopix)rtunity  and  temptation  to 
use  it  arising  from  its  concealment.  If  the  weapon  is  carried  for  lawful  use, 
or  even  for  unlawful  use,  the  defendant  would  not  be  guilty,  under  this 
section,  if  the  weapon  is  carried  ojienly,  since  this  statute  applies,  not  to 
the  act  of  carrying  the  weapon,  or  the  pur|)ose  in  carrying  it,  but  to  the 
manner  of  carrying  it.  For  citations  respecting  the  right  to  bear  arms  see 
Bolis  V.  State,  8  Am.  Cr.  R.  136  and  note. 


■ii^ 


158 


AMERICAN  CRIMINAL  REPORTa 


Thomas  v.  State. 


(90  Ga.  437.) 

Cheatino   and   Swindling  :    What  constitutes— Arguments  of  coumel— 

jurors, 

1.  As  criminal  cases  are.  by  the  act  of  September  7,  1891,   subjectod,  in 

respect  to  the  time  for  siKnin.o;  and  certifying  the  bill  of  exceptions,  to 
the  practice  relating  to  bills  of  exceptions  in  cases  of  injunction,  tlie 
overruling  of  a  ilcinurror  to  a  bill  of  indictment,  unless  exccpti'd  to 
pendente  lite,  can  not  be  reviewed  on  a  bill  of  exceptions  bringing  the 
case  to  this  court,  signed  and  certified  within  twenty  days  after  final 
judgment  overruling  a  motion  for  a  new  trial,  but  not  witiiin 
twenty  days  after  the  decision  on  the  demurrer. 

2.  Counsel,  in  discussing  the  credibility  of  a  witness  to  the  jury,  may  refer 

to  tiie  witnjss  as  a  person  of  bad  character,  whore  there  is  evidence!  t(j 
that  effect. 

3.  A  juror  may  take  notes  of  amounts  testified  to  by  a  witness.     Tift  v. 

Town,  63  Ga.  237;  Lily  v,  Oriffln,  71  Ga.  5;i">.  There  is  no  law  to  pro- 
hibit a  juror  from  taking  notes  of  any  of  the  evidence. 

4.  It  is  not  error  for  the  court  to  enumerate  acts  constituting  the  ossen- 

tials  of  the  offense,  and  to  instruct  th3  jury  thit  if  they  find  these  acts 
are  established,  they  would  be  bound  to  find  the  defendant  guilty. 
Kitchens  v.  State,  41  Oa.  217;  Pennaman  v.  State,  58  Ga.  33(5;  Hill  v. 
State,  63  Ga.  578;  Wilson  v.  State,  67  Ga.  66J,  631;  Kinncbrew  v.  State, 
80  Ga.  232. 

5.  Tlie  offense  of  cheating  and  swindling  maj-  be  committee!  by  false  rep- 

resentation of  a  past  or  existing  fact,  although  a  promise  be  also  a 
part  of  the  inducement  to  the  person  defrauded  to  part  with  liis 
property.  A  verdict  of  guilty  was  not  contrary  to  law  and  the  evi- 
dence, there  being  evidence  suflScient  to  sustain  the  allegations  of  the 
accusation  to  the  effect  that  the  defendant  induced  the  prosecutor  to 
exchange  to  a  confederate  of  the  defendant  a  certain  pair  of  mules, 
a  wagon,  and  a  set  of  harness,  worth  $200,  for  two  horses  and  a  mare 
of  greatly  inferior  value,  upon  the  faith  of  the  defendant's  representa- 
tion that  he  had  already  sold  the  horses  to  a  certain  other  person  for 
$275,  to  be  paid  as  soon  as  they  were  delivered,  and  out  of  which 
money  the  prosecutor,  if  the  trade  should  be  made,  would  get  |200,  the 
defendant  to  take  for  himself  $75  and  the  mare;  this  representation 
being  untrue,  and  made  to  the  prosecutor  for  the  purpose  of  cheating 
and  swindling  him. 


Error  from  Criminal  Co  ■  t  of  Atlanta;  T.  P.  Westmoreland, 
Judge. 

Albert  Thomas  was  convicted  of  cheating  and  swindling. 
A  motion  for  a  new  trial  was  overruled,  and  he  brings  error. 
Affirmed. 


I 


THOMAS  V.  STATE. 


151) 


R  J.  Jordan,  for  plaintiff  in  error. 
Zewis  \V.  Thomas,  for  the  State. 

SiMMoxg,  J.    The  accusation  was  preferred  by  George  W. 
Miller,  and  charged  the  defendant,  Albert  Thomas,  with  the 
offense  of  misdemeanor,  in  "  using  deceitful  means  and  artful 
practices,  by  which  said  George  W.  Miller  was  defrauded  and 
cheated  of  a  certain  pair  of  mules,  one  wagon,  and  a  double 
set  of  liarness,  of  the  value  of  two  hundred  dollars;  for  that 
*    *    *    on  the  day  and  date  aforesaid,    *    *    *    in  the 
county    of   Fulton  aforesaid,   the  said   Albert  Thomas   ap- 
proiicliod  the  said  George  W.  Miller  for  the  purpose  of  pur- 
chasing the  property  aforesaid,  and  which  the  said  George  W. 
Miller  wished  to  sell.     The  said  Albert  Thomas  said  to  George 
W.  Miller  that  he  knew  a  lady  who  had  two  gray  horses  which 
were  worth  $050,  and  one  gray  mare,  and  she  wanted  to  ex- 
change them  for  a  pair  of  mules,  which  she  wanted  on  her 
farm  out  in  the  country,  and  that  he  had  ap.air  of  gray  horses 
already  sold  to  Walker  for  $275,  who  wanted  them  for  car- 
riage lioises;  the  said  Albert  Thomas  at  the  same  time  point- 
ing in  the  direction  of  the  well  known  livery  and  sale  stables 
of  Ilill  &  Walker,  on  Hunter  street,  Atlanta,  Ga.;  and   the 
said  Albert  Thomas  said  to  the  said  George  W.  Miller  that,  if 
the  said  Miller  would  just  let  him  work  the  trade,  and  not  say 
anything,  he,  the  said  Thomas,  would  work  it  so  that  he  would 
get  the  $200  for  Miller  for  his  property  aforesaid,  and  that  he, 
the  said  Thomas,  would  make  $75  and  the  gray  mare ;  and 
the  said  Albert  Thomas  repeated  then  and  there  that,  as  soon 
as  the  trade  was  made,  they  would  go  right  up  to  Walker's, 
and  get  the  money,  to  wit,  the  $200,  for  his  said   property; 
the  said  Albert  Thomas  further  representing  to  the   said 
George  W.  Miller    *    *     *    that  the  lady  referred  to  was 
kept  by  a  rich  white  man  in  town,  and  that  she  was  rich,  and 
could  give  a  check  for  any  amount  of  money;  and,  damn  her, 
he  would  like  to  beat  her."    That  Miller,  relying  and  acting 
upon  these  representations,  and  believing  them  to  be  true,  was 
induced  by  Thomas  to  part  with  the  possession  of  his  prop- 
erty, and  make  the  exchange  for  the  gray  horses  and  gray 
mare,  upon  the  day  and  date  aforesaid,  in  Fulton  county; 
whereas,  in  truth,  the  horses  were  not  worth  $650,  nor  any- 
thing like  that  sum,  the  three  horses  being  really  not  w^orth 


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AMERICAN  CRIMINAL  REPORTS. 


more  than  §03.50,  and  the  lady  to  whom  Thomas  referred  was 
a  negro  woman,  named  Priscilla  Eay,  who  is  in  thorough 
sympathy  with  Thomas  in  this  entire  transaction,  and  did  aid 
and  abet  him  therein ;  and  whereas  said  Walker,  nor  any  one 
else,  had  offered  to  pay  and  was  ready  to  pay  $275  for  the 
grav  horses,  as  represented  by  him  he  had  done,  nor  has  Miller 
received  $200  for  his  property  as  aforesaid.  And  Thomas  well 
knew,  at  the  time  he  made  the  several  representations  afore- 
said to  Miller,  that  they  were  not  true,  and  they  were  made 
by  him,  Thomas,  for  the  purpose  of  cheating  and  swindling, 
and  did  thereby  cheat  and  defraud  Miller  out  of  his  property, 
which  was  worth  $200."  The  transaction,  as  shown  by  the 
testimony  for  the  state  was,  in  substance,  the  same  as  alleged 
in  the  accusation,  except  that  in  the  proof  the  prosecutor  was 
shown  to  have  received  $15  in  the  exchange  besides  the  two 
horses  and  the  mare.  There  was  a  verdict  of  guilty,  and  the 
defer:  lant  made  a  motion  for  a  new  trial,  which  was  over- 
ruled, and  he  excepted. 

The  questions  ruled  upon  in  the  1st,  2d,  3d,  and  4th  head- 
notes  do  not  require  further  discussion. 

It  was  contended  that  in  order  to  make  out  the  offense 
of  cheating  and  swindling,  the  false  representation  must  relate 
to  a  past  or  existing  fact,  and  that  the  verdict  was  contrary  to 
law  and  the  evidence,  because  the  representations  upon  which 
the  prosecutor  claimed  to  have  acted  related  to  something  to 
to  be  done  in  the  future.  The  testimony,  it  is  true,  Avas  con- 
flicting as  to  whether  the  accused,  at  the  time  of  proposing  the 
exchange,  stated  to  the  prosecutor  that  he  had  already  sold 
the  horses  to  Mr.  Walker,  and  had  sold  them  for  $275,  as 
charged  in  the  accusation,  or  whether  the  statement  was  merely 
that  he  could  sell  them  to  Walker  for  that  amount ;  but  there 
was  sufficient  evidence  to  sustain  the  allegation  on  this  point, 
and  to  show  that  the  basis  of  the  transaction,  and  the  induce- 
ment upon  which  the  prosecutor  acted  in  parting  with  his 
property,  was  primarily  the  false  representation  of  the  ac- 
cused that  the  horses  were  already  sold  to  Walker.  This 
rei)resentation,  in  connection  with  the  other  facts  shown  by 
the  proof,  is  enough  to  bring  the  case  within  the  terms  of  the 
statute  under  which  the  accused  was  tried  and  convicted. 
Code,  §  4595.  That  the  representation  was  as  to  a  sale  not 
completed  hy  delivery  did  not  render  it  any  less  a  representa- 


DEALY  V.  UNITED  StATES. 


161 


tion  as  to  a  past  fact  than  it  would  have  been  if  it  had  referred 
to  a  sale  altogether  complete.  Nor  does  it  matter  that  a 
promise  by  the  accused  operated  as  a  part  of  the  inducement 
under  which  the  prosecutor  parted  with  his  property.  The 
consequence  attached  to  the  false  representation  was  not  over- 
thrown by  the  promise.  2  Bish.  Crim.  Law  (7th  Ed.),  §§  424- 
427;  2  Whart.  Crim  Law  (9th  Ed.),  §  1174,  and  cases  cited;  7 
Amer.  &  Eng.  Enc.  Law,  714-716,  753,  note;  Heg.  v.  West,  8 
Cox  Crim.  Cas.,  12;  State  v.  Fooka  (Iowa),  21  N.  W.  Rep. 
561;  State  v.  JViohola,  1  Houst.  Crim.  Cas.,  114.  Judgment 
aiRrmed. 

UoTE.— Indictment. — Where  one,  by  falsehood  and  artifice,  involving  co- 
operation and  connivance  with  a  confederate,  obtains  from  a  third  person 
a  bill  of  sale  to  pers'  lal  property  and  possession  of  the  property,  whereby 
tlie  owner  is  defrauded  and  cheated,  an  accusation  charging  the  facts  spe- 
cifically, and  supported  by  evidence,  is  sustainable;  the  offense  committed 
being  a  misdemeanor,  under  section  459S  of  the  Code.  Jonea  v.  State,  19 
S.  E.  250. 


tm 


Dealt  v.  United  States. 

(152  U.  S.  539.)  ' 

CoNSPlBACTt    Venue— Indictment— Several  counts— Verdict— Practice. 

1.  A  nolle  prosequi  as  to  a  count  in  an  indictment  works  no  acquittal,  but 

leaves  the  prosecution  as  though  no  such  count  had  been  inserted  in 
the  indictment. 

2.  A  verdict  of  guilty  or  not  guilty  as  to  the  charge  in  one  count  of  an  in- 

dictment, is  not  responsive  to  the  charge  in  any  other  count. 
8.  In  cliarging  a  conspiracy  to  defraud  the  (Jnited  States  of  large  tracts  of 
land  by  means  of  false  and  fictitious  entries  under  the  homestead  laws, 
it  is  not  necessary  to  specify  the  tracts  hy  number  of  section,  township 
and  range. 

4.  An  entry  of  lands  under  the  homestead  law,  in  popular  understanding, 

means  not  only  the  preliminary  application,  but  the  proceedings  as  a 
whole  to  complete  the  transfer  of  title,  and  in  charging  a  conspiracy  to 
obtain  public  lands  by  false  entries,  the  word  may  be  used  in  that  sense 
in  the  indictment. 

5.  A  charge  that  an  overt  act  was  done  according  to  and  in  pursuance  of  a 

conspiracy  which  had  been  previously  recited,  is  equivalent  to  charg- 
ing that  it  wa3  done  to  effect  the  object  of  the  conspiracy. 

6.  If  an  illegal  conspiracy  be  entered  into  within  the  limits  of  the  United 

States  and  within  the  jurisdiction  of  the  court,  the  crime  is  complete* 
and  the  subsequent  overt  act  in  pursuance  thereof  may  be  done  any; 
where, 
11 


1?" 


Si    i. 


l\    '■   M 


162 


AMEBIUAN  CRIMINAL  REPORTS. 


Error  to  the  District  Court  of  the  United  States  for  the 
District  of  North  Dakota.  No.  1035.  Argued  March  20, 
1894,  decided  April  2. 1894. 

Statement  of  Facts. 


51  .ft 


* 


On  December  16, 1892,  an  indictment  was  returned  by  the 
grand  jury  in  the  District  Court  of  the  United  States  for  the 
District  of  North  Dakota  charging  the  plaintiff  in  error,  to- 
gether with  others,  with  the  crime  of  conspiracy  to  defraud 
the  United  States  as  denounced  in  section  5440,  Revised  Stat- 
utes, which  reads :  "  If  two  or  more  persons  conspire  either 
to  commit  any  offense  against  the  United  States,  or  to  defraud 
the  United  States  in  any  manner  or  for  any  purpose,  and  one 
or  more  of  such  parties  do  any  act  to  effect  the  object  of  the 
conspiracy,  all  the  parties  to  such  conspiracy  shall  be  liable  to 
a  penalty  of  not  less  than  $1,000  and  not  more  than  $10,000, 
and  to  imprisonment  not  more  than  two  years." 

The  indictment  was  in  seventeen  counts.  The  first  was  as 
follows :  "  That  on  the  first  day  of  April,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety -one,  in  the  county 
of  Rolette,  State  of  North  Dakota,  and  within  the  jurisdiction 
of  this  court,  one  William  W.  Allen,  one  Michael  Dealy,  one 
Edward  Laberge,  one  Peter  Thibert  and  one  H.  H.  Fritz,  and 
others  to  the  grand  jury  unknown,  did  commit  the  crime  of 
conspiracy  to  defraud  the  United  States,  committed  as  follows : 
'  That  at  the  time  and  place  aforesaid,  the  said  William  W. 
Allen,  Michael  Dealy,  Edward  Labergo,  Peter  Thibert,  and  H. 
II.  Fritz,  and  others  to  the  grand  jury  unknown,  did  falsely, 
unlawfully,  and  wickedly  conspire,  combine,  confederate  and 
agree  together  among  themselves  to  defraud  the  United  States 
of  the  title  and  possession  of  large  tracts  of  land  in  said  county, 
of  gr^at  value,  by  means  of  false,  feigned,  illegal  and  fictitious 
entries  of  said  lands  under  the  homestead  laws  of  the  United 
States,  the  said  lands  being  then  and  there  public  lands  of  the 
United  States,  open  to  entry  under  said  homestead  laws  at  the 
local  land  office  of  the  United  States  at  Devil's  Lake  City,  in 
said  state,  and  that  according  to  and  in  pursuance  of  said  con- 
spiracy, combination,  confederacy  and  agreement  among  them- 
selves had  as  aforesaid,  the  said  Allen  did  persuade  and  induce 
one  Charles  Pattnaude  to  make  filing  under  said  homestead 


DEALY  V.  UNITED  STATES. 


168 


laws  and  thereafter  to  make  proof  and  final  entry  under  said 
laws  for  the  lands  known  and  described  as  follows :  The  south 
half  of  the  northeast  quarter  and  lots  1  and  2,  of  section  6,  in 
township  163  north,  of  range  70  west  of  the  6th  principal 
meridian,  said  lands  lying  and  being  in  said  county,  on  which 
said  lands  said  Pattnaude,  as  said  Allen  then  and  there  well 
knew,  had  never  made  settlement,  improvement  or  residence, 
contrary  to  the  form  of  the  statute  of  the  United  States  in 
such  case  made  and  provided,  and  against  the  peace  and  dig- 
nity of  the  United  States.'  " 

In  the  further  counts  the  conspiracy  was  charged  in  sub- 
stantially the  same  language,  but  with  it  in  each  a  separate 
overt  act,  that  in  the  third  being  stated  as  follows:  "Accord- 
ing to  and  in  pursuance  of  said  conspiracy,  combination,  con- 
federation and  agreement,  the  said  Allen  did  fraudulently  and 
unlawfully  induce  and  persuade  one  Frank  Premeau  to  appear 
as  a  witness  for  one  Charles  Pattnaude  in  making  final  proof 
under  said  laws  before  H.  H.  Fritz,  clerk  of  the  District  Court 
of  the  State  of  North  Dakota,  in  and  for  said  county,  being  a 
court  of  record  of  said  state,  and  as  such  witness  before  said 
Fritz,  to  testify  and  make  proof  for  said  Pattnaude,  in  efl'cct 
that  ha  had  resided  for  more  than  five  years  immediately  pro- 
ceding  the  time  of  making  proof,  on  the  lands  known  and  de- 
bcribed  as  south  half  of  the  northejist  quarter  and  lots  1  and  2, 
of  section  6,  township  103,  range  70  west,  of  5th  principal 
meridian,  lying  and  being  in  said  county,  public  lands  of  the 
United  States  and  subject  to  entry  under  said  laws  of  said  land 
office,  whereas  in  fact,  said  Pattnaude,  as  said  Allen  well  knew, 
had  never  resided  on  said  land  at  any  time  within  five  years 
prior  to  making  such  proof,  contrary  to  the  form  of  the  stat- 
ute of  the  United  States  in  such  case  made  and  provided,  anil 
against  the  peace  and  dignity  of  the  United  States." 

The  overt  acts  stated  in  the  other  counts  were  of  a  similar 
character.  Prior  to  a  trial  a  nolle  was  entered  as  to  the  second, 
fourth,  fifth,  sixth,  ninth  and  seventeenth  counts.  The  case 
being  tried  on  the  remaining  counts,  the  defendants  Alien, 
Dealy  and  Laberge  were  found  guilty  on  all  but  the  sixteenth. 
A  motion  for  a  new  trial  and  one  in  arrest  of  judgment  having 
been  overruled,  the  defendant  Dealy  was  sentenced  to  impris- 
onment for  the  terra  of  one  year  and  one  month,  and  to  pay  a 
fine  of  $1,000.  To  reverse  such  judgment  and  sentence  ho 
sued  out  a  writ  of  error  from  this  court. 


i©i'--'- 


i:;^ 


164 


AMERICAN  CRIMINAL  REPORTS. 


^ 


'"    '1,' 


;  «  \ 


h 


Mr.  A.  S.  Drake,  for  plaintiff  in  error. 

Assistant  Attorney-General  Conrad,  for  defendant  in  error. 

Opinion  of  the  Court. 

Mr.  Justice  Brewer,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  first  proposition  of  counsel  for  defendant  is  that  the  ac- 
quittal on  certain  of  the  counts  works  an  acquittal  as  to  all. 
There  was  in  terms  no  verdict  of  not  guilty  as  to  any  count. 
A  nolle  was  entered  as  to  several,  but  a  nolle  works  no  ac- 
quittal, and  leaves  the  prosecution  as  though  no  such  count 
had  ever  been  inserted  in  the  indictment.  Of  those  remaining, 
one,  the  sixteenth  count,  was  not  referred  to  in  the  verdict. 
It  may  have  been  simply  overlooked  by  the  jury.  Be  that 
as  it  may,  the  discharge  of  the  jury  under  the  circumstances 
was  doubtless  equivalent  to  a  verdict  of  not  guilty  as  to  that 
count.  Upon  this,  defendant's  counsel  say  that  the  only  of- 
fense charged  is  conspiracy,  that  "the  indictment  aifiounts 
to  but  one  count,  and  one  charge  of  conspiracy,  with  seven- 
teen different  overt  acts,"  and  that  an  acquittal  on  one 
count  acquits  him  of  the  single  offense  charged  in  all  the 
counts.  But  this  is  obviously  a  mistake.  It  is  familiar  law 
that  separate  counts  are  united  in  one  ind'otment,  either  be- 
cause entirely  separate  and  distinct  offensv  are  intended  to 
be  charged,  or  because  the  pleader,  having  in  mind  but  a 
single  offense,  varies  the  statement  in  the  several  counts  as 
to  the  manner  or  means  of  its  commission  in  order  to  avoid 
at  the  trial  an  acquittal  by  reason  of  any  unforeseen  lack  of 
harmony  between  the*  allegations  and  the  proofs.  1  Bishop 
on  Criminal  Procedure,  Sec.  422.  Yet  whatever  the  purpose 
may  be,  each  count  is,  in  form,  a  distinct  charge  of  a  separate 
offense,  and  hence  a  verdict  of  guilty  or  not  guilty  as  to  it 
is  not  responsive  to  the  charge  in  any  other  count.  Take 
the  case  of  an  indictment  for  murder.  Suppose  in  one  count 
the  homicide  is  charged  to  have  been  committed  by  means 
of  a  blow  from  a  pick-axe,  and  in  another  a  shot  from  a  pis- 
tol. While  from  the  name  of  the  deceased  and  the  time 
and  place  of  the  killing  it  may  be  inferred  that  the  same 
homicide  is  in  the  mind  of  the  pleader,  yet  such  inference 
is  not,  as  a  matter  of  fact,  conclusive,  and  as  a  matter  of  law, 


DEALY  V.  UNITED  STATE3. 


1G5 


is  overthrown  by  the  dissimilarity  in  the  mea.is  of  the  homi. 
cide,  and  it  certainly  would  be  a  novelty  in  criminal  practice 
to  have  a  verdict  returned  upon  such  indictment,  finding 
the  defendant  guilty  under  the  one  count  and  not  guilty  under 
the  other,  adjudged  a  verdict  of  not  guilty  as  to  both. 

In  the  case  at  bar  the  section  of  the  statute  under  Avhich 
this  indictment  was  found  requires  not  merely  a  conspiracy, 
but  some  act  to  carry  into  effect  its  object.  This  act  is  only 
one  of  the  means,  by  which  the  conspiracy  is  sought  to  be 
carried  into  effect,  just  as  in  the  illustration  given,  the  blow 
of  the  pick-axe  and  the  shot  from  the  pistol  are  means  for 
the  accomplishment  of  the  homicide,  and  a  verdict  of  not 
guilty  as  to  any  one  of  the  counts  in  this  indictment  is  not 
necessarily  a  finding  against  any  conspiracy,  but  only  that  the 
conspiracy  and  the  overt  act  therein  stated  did  not  both  exist, 
while  a  verdict  oi  g'lilty  upon  any  other  count  finds  both 
the  conspiracy  and  tho  overt  act  named  therein.  There  is  no 
conflict  between  the  findings,  and  no  force  to  this  objection. 

Neither  the  testimony  nor  the  instructions  having  been 
preserved  in  the  record,  the  only  other  matter  to  which  our 
consider,  i  n  is  directed  is  as  to  the  sufficiency  oi  the  indict- 
ment. It  is  objected,  in  the  first  place,  that  there  is  no  specifi- 
cation of  the  particular  tract  or  tracts  of  which  the  defend- 
ants conspired  to  defraud  the  United  States.  There  is  nothing 
more  definite  than  this :  large  tracts  of  lands  in  the  county  of 
Rolette,  State  of  North  Dakota,  such  lands  being  public  lands 
of  the  United  States,  open  to  entry  under  the  homestead  laws 
at  the  local  land  office  of  the  United  States  at  Devil's  Lake 
City,  in  said  state.  It  is  truy,  no  tract  is  named  bj'  the  number 
of  section,  township  and  range,  and  the  language  is  broad 
enough  to  include  any  or  all  the  public  lands  of  the  United 
States  situate  within  that  county,  and  subject  to  homestead 
entry  at  that  land  office.  But  manifestly  the  description  in 
the  indictment  does  not  need  to  be  any  more  definite  and  pre- 
cise than  the  proof  of  the  crime.  In  other  words,  if  certain 
facts  make  out  the  crime,  it  is  sufficient  to  charge  those  facts, 
and  it  is  obviously  unnecessary  to  state  that  which  is  not 
essential.  Can  it  be  doubted  that  if  these  defendants  entered 
into  a  conspiracy  to  defraud  the  United  States  of  public  lands 
subject  to  homestead  entry,  at  the  given  office  in  the  nr  od 
county,  the  crime  of  conspiracy  was  complete  even  if  no  par- 


:  I 


i 


.;'i)  *f. 


-t  \ 


t>:y     V' 


166 


AMERICAN  CRIMINAL  REPORTa 


ticular  tract  or  tracts  were  selected  by  the  conspirators? 
It  is  enough  that  their  purpose  and  their  conspiracy  had  in 
view  the  acquiring  of  some  of  those  lands,  and  it  is  not  essen- 
tial to  the  crime,  that  in  the  minds  of  the  conspirators  the 
precise  lands  had  already  been  identified. 

In  Dickinson's  Guide  to  the  Quarter  Sessions,  p.  355,  is 
given  the  form  of  an  indictment  for  a  like  conspiracy  which, 
as  appears,  was  t*vice  before  the  king's  bench.  Hex  v.  Cooke, 
2  B.  &  C.  618;  5  B.  «fe  C.  538.  In  that  indictment  the  con- 
spiracy is  charged  in  these  words :  "  Did  conspire,  combine, 
confederate  and  agree  together,  unlawfully  and  unjustly  to 
disturb,  molest  and  disquiet  Sir  George  Jerninghara,  Bart., 
in  the  peaceable  and  quiet  possession,  occupation,  and  enjoy- 
ment of  certain  manors,  messuages,  lands,  hereditaments 
and  premises,  situate  and  being  in  said  count\'  of  S.,  of  which 
be,  the  said  Sir  George  Jerningham,  then  was,  and  for  a  long 
time  had  been,  peaceably  and  quietly  possessed."  In  describ- 
inff  the  overt  act  it  is  stated  that  defendant  did  "  break  and 
enter  a  certain  messuage,  called  Stafford  Castle,  situate  in  the 
county  aforesaid,  whereof  the  said  Sir  George  Jerningham  had 
long  been,  and  then  was,  in  the  peaceable  and  quiet  possession." 
In  other  words,  there,  as  here,  the  description  in  the  conspir- 
ac}"^  part  of  the  indictment  is  broad  enough  to  include  any 
lands  within  the  county  belonging  to  and  in  jiossession  of  the 
party  against  whom  the  conspiracy  was  formed,  but  when  the 
overt  act  of  the  conspirators  was  stated,  then  the  particular 
tract  in  respect  to  wliich  the  act  was  committed  is  described. 

It  is  further  objected  that  the  indictment  is  defective  in  its 
statement  of  the  means  by  which  the  conspiracy  was  to  be 
carried  into  effect.  The  language  is  by  means  of  "  false, 
feigned,  illegal,  fictitious  entries  under  the  homestead  laws  of 
the  United  States."  It  is  insisted  that  the  word  "  entry  "  in 
homestead  cases  has  a  settled,  technical  meaning,  and  refers 
simply  to  the  initiation  of  the  proceedings,  and  the  language 
of  Mr.  Justice  Lamar,  speaking  for  this  court,  in  Hastings 
(Us  DaTcota  Railroad  v.  Whitney,  132  U.  S.  357,  363,  is  cited : 
"  Under  the  homestead  law  three  things  are  needed  in  order 
to  constitute  an  entry  on  public  lands  :  First,  the  applicant 
must  make  an  affidavit  setting  forth  the  facts  which  entitle 
him  to  make  such  entry;  second,  he  must  make  a  formal  appli- 
cation; and  third,  he  must  make  payment  of  the  money  re- 


DEALY  V.  UNITED  STATES 


167 


quired.  When  these  requisites  are  complied  with,  and  the 
certificate  of  entry  is  executed  and  delivered  to  him,  the  entry 
is  made — the  land  is  entered." 

The  argument  is  that  the  word  "  entry,"  having  a  technical 
meaning,  must  be  taken  with  that  meaning  in  this  indictment; 
that,  as  thus  understood,  an  entry  in  a  homestead  case  being 
but  a  preliminary  act,  does  not  operate  to  divest  the  title  of 
the  government,  and,  as  it  is  said  in  the  brief,  "  The  charge 
that  defendants  conspired  todefrauu  the  government  by  means 
of  false  entries  to  lands  under  the  homestead  laws  will  thus  be 
seen  to  be  a  charge  of  an  innocent  act." 

Kut  the  popular  understanding  of  the  word  is  not  thus  lim- 
ited. It  is  common  to  speak  of  an  entry  of  land  under  the 
homestead  law,  meaning  thereby  not  a  mere  preliminary  ap- 
plication, but  the  proceedings  as  a  whole,  the  complete  trans- 
fer of  title.  Counsel  concede  that  in  cash  purchase  and  pre- 
emption cases,  it  is  even  technically  used  to  describe  the  final 
proof  or  final  purchase,  but  seek  to  draw  a  distinction  between 
its  use  in  those  cases  and  under  the  homestead  law.  Even  if  it 
was  conceded  that  such  a  distinction  is  recognized  in  the  stat- 
utes and  authorities,  it  would  not  change  the  significance  of 
the  popular  use.  Clearly,  it  is  used  in  this  indictment  in  its 
popular  sense,  for  when  we  turn  to  the  description  of  the  overt 
acts,  we  find  matters  subsequent  to  the  original  entry.  Thus, 
in  the  first  count,  one  of  the  defendants  is  charged  to  have 
induced  "  Charles  Pattnaude  to  make  filing  under  said  home- 
stead laws,  and  thereafter  to  make  proof  and  final  entry  under 
said  laws  for  land  known,"  etc.  Something  of  equal  signifi- 
cance is  found  in  each  of  the  subsequent  counts  upon  which 
conviction  was  had.  It  is  one  purpose  of  an  indictment  to  in- 
form the  defendant  of  the  crime  with  which  he  is  charged, 
and  there  can  be  no  doubt  that  this  defendant  understood  the 
exact  sense  in  which  the  word  "  entry  "  was  used  in  this  in- 
dictment, and  was  not  misled  into  the  belief  that  the  only 
crime  charged  against  him  was  of  a  conspiracy  to  acquire  lands 
of  the  United  States  by  means  of  wrongful  preliminary  proof. 

It  is  also  said  that  the  indictment  does  not  charge  that  the 
overt  act  was  done  "  to  effect  the  object  of  the  conspiracy," 
as  the  statute  expresses  it,  but  is  charged  to  have  been  done 
simply  "  according  to  and  in  pursuance  of  said  conspiracy." 
But  this  is  too  great  a  refinement  of  construction.    Something 


\4 


,  «■ 


L 


168 


AMERICAN  CRDIINAL  REPORTS^ 


saii 


'I  n' 


'llLLii'iih 


■  }! 


WM 


more  is  intended  by  the  use  of  the  words  "according  to  and 
in  pursuance  of"  than  that  the  overt  act  was  done  after  the 
formation  of  the  conspiracy,  or  even  that  it  was  simply  a  result 
of  the  conspiracy.  It  implies  that  the  act  was  one  contemplated 
by  the  conspiracy,  "  according  to,"  and  was  done  in  carrying 
it  out  '*  in  pursuance  of ,"  something  which  the  consjM  racy  pro- 
vided should  be  done,  sometI)ing  which,  when  done,  should 
tend  to  accomplish  the  purpose  of  the  conspiracy. 

Ao-ain,  it  is  objected  that  the  time  at  which  the  overt  act 
was  done  is  not  specifically  stated,  but  the  date  of  the  con- 
spiracy is  alleged,  and  that  the  overt  act  was  "  acconling  to 
and  in  pursuance  of."  Necessarily*,  therefore,  it  was  subse- 
quent to  the  conspiracy. 

Still,  again,  it  is  urged  that  the  overt  acts,  the  inducing  and 
persuading,  are  not  charged  to  have  been  done  within  the 
limits  of  the  United  States.  The  conspiracy  is  chargeil  to  have 
been  entered  into  in  the  State  of  North  Dakota,  and  the  proof 
necessary  to  make  final  entry  at  the  land  office  named  would 
have  to  be  used  in  that  State.  While  it  is  true  there  is  no 
specific  allegation  that  the  act  of  inducing  and  persuading 
was  done  within  the  jurisdiction  of  the  court,  and  while  it 
may  be  possible,  as  counsel  suggest,  that  so  far  as  this  record 
discloses,  all  the  solicitation  and  persuasion  exercised  by  the 
defendant  was  done  within  the  limits  of  Canada,  and  outside 
the  jurisdiction  of  the  trial  court,  yet  the  solicitation  was  to 
do  a  wrongful  act  within  the  State  of  North  Dakota  {In  re 
PalUser,  136  U.  S.  257,  265),  and  that  solicitation  was  not  a 
part  of  the  conspiracy,  but  subsequent  to  and  in  furtherance  of 
it.  The  gist  of  the  offense  is  the  conspiracy.  As  said  by  Mr. 
Justice  "Woods,  speaking  for  this  court,  in  United  States  v. 
Britton,  108  U.  S.  199,  204,  "  This  offense  do3s  not  consist 
of  both  the  conspiracy  and  the  acts  done  to  effect  the  object 
of  the  conspiracy,  but  of  the  conspiracy  alone.  The  provision 
of  the  statute  that  there  must  be  an  act  done  to  effect  the 
object  of  the  conspiracy,  merely  affords  a  locus  pamitentice,  so 
that  before  the  act  is  done  either  one  or  all  of  the  parties  may 
abandon  their  design,  and  thus  avoid  the  penalty  prescribed 
by  the  statute."  Hence,  if  the  conspiracy  was  entered  into 
within  the  limits  of  the  United  States  and  the  jurisdiction  of 
the  court,  the  crime  was  then  complete,  and  the  subsequent 
overt  act  in  pursuance  thereof  may  have  been  done  anywhere. 


pai 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


169 


Tliese  are  all  the  questions  which  we  consider  of  impor- 
tance. Several  other  matters  are  suggested  by  counsel.  We 
have  examined  all  of  them,  and  deem  it  unnecessary  to 
jjrolong  this  opinion  by  noticing  them  in  detail.  We  see  no 
error  in  the  record,  and  the  judgment  is  affirmed. 

Mr.  Justice  Jackson  did  not  hear  the  argument  or  take 
part  in  the  decision  of  this  case. 

Note. — Indictment.— It  is  not  sufficient  to  charge  a  conspiracy  to  defraud 
the  United  States  in  the  general  language  of  Rev.  St.,  ^  5440.  17.  S.  v.  Heaa, 
ia4  U.  S.  483,  applied;  In  re  Benson  (C.  C),  58  Fed.  063. 


Arthur  et  al.  v.  Oakes  et  al. 

(11  C.  C.  A.  209.) 

(U.  S.  Circuit  Court  of  Appeals,  Seventh  Circuit.    October  1, 1894.) 

Conspiracy:  When  illegal— Unlawful  combination  of  employes— Strike, 
tchen  illegal — Interference  by  equity — Contract  of  employment — Equity 
jurisdiction — Remedies  for  breach— Railroad  employes  quitting  service 
vnthout  cause. 

1 .  If  an  employe  of  a  railroad  company  quits  without  cause,  and  in  violation 

of  an  express  contract  to  serve  for  a  stated  time,  then  his  quitting 
would  not  be  of  right,  and  he  would  be  liable  for  any  damages  resulting 
from  a  breach  of  his  agreement,  and,  perhaps,  in  some  states  of  case, 
to  criminal  prosecution  for  loss  of  life  or  limb  by  passengers  or  others, 
directly  resulting  from  his  abandoning  his  post  at  a  time  when  care  and 
watchfulness  was  required  upon  his  part  in  the  discharge  of  a  duty  he 
had  undertaken  to  perform. 

2.  It  would  be  an  invasion  of  one's  natural  liberty  to  compel  him  to  work 

for,  or  to  remain  in  the  personal  service  of,  another.  One  who  is  placed 
under  such  restraint  is  in  a  condition  of  involuntary  servitude — a  condi- 
tion which  the  supreme  law  of  the  land  declares  shall  not  exist  wi.hin 
the  United  States,  or  in  any  place  subject  to  their  jurisdiction. 

3.  The  rule,  we  think,  is  without  exception  that  equity  will  not  compel  the 

actual,  affirmative  performance  by  an  employe  of  merely  personal  serv- 
ices, any  more  than  it  will  compel  an  employer  to  retain  in  liis  per- 
sonal service  one  who,  no  matter  for  what  cause,  is  not  acceptable  to 
him  for  service  of  that  character.  The  right  of  an  employe,  engaged 
to  perform  personal  service,  to  quit  that  service,  rests  upon  the  same 
basis  as  the  right  of  his  employer  to  discharge  him  from  further  per- 
sonal service.  If  the  quitting  in  the  one  case,  or  the  discharging  in  the 
other,  is  in  violation  .of  the  contract  between  the  parties,  the  one  in- 


170 


AMERICAN  CRIMINAL  REPORTS. 


'i 
i| 


I 


*i 


r.l' 
■  >..  ■ 


jurctl  by  the  breach  has  his  action  for  damages;  and  a  court  of  equity 
will  not,  indirectly  or  negatively,  by  means  of  an  injunction  restrain- 
ing tlie  violation  of  the  contract,  compel  the  affirmative  performance 
from  day  to  day,  or  the  affirmative  acceptance,  of  meruly  personal 
services.  Relief  of  that  character  has  always  been  regarded  as  imprac- 
ticnblo. 

4.  Undoubtedly,  the  simultaneous  cessation  of  work  ty  any  considerable 

number  of  the  employes  of  a  railroad  corporation  without  previous  no- 
tice will  have  an  injurious  eflfect,  and  for  a  time  inconvenience  the 
public.  But  these  evils,  great  as  they  are,  and  althougli  arising  in 
many  cases  from  the  inconsiderate  conduct  of  employes  and  employers, 
both  equally  indifferent  to  the  general  welfare,  are  to  be  met  and  rem- 
edied by  legislation  restraining  alike  employes  and  employers,  so  far 
as  necessary  adequately  to  guard  the  rights  of  the  public  as  involved 
ill  the  existence,  maintenance,  and  safe  management  of  public  high- 
ways. In  the  absence  of  legislation  to  the  contrary,  the  right  of  one 
in  the  service  of  a  quasi  public  corporation  to  withdraw  therefrom  at 
such  time  as  he  sees  fit,  and  the  right  of  the  managers  of  such  a  cor- 
poration to  discharge  an  employe  from  service  whenever  they  see 
fit,  must  be  deemed  so  far  absolute  that  no  court  of  equity  will  compel 
him,  against  his  will,  to  remain  in  such  service  or  actually  to  perform 
the  peraonal  acts  required  in  such  employments,  or  compel  such  man- 
agers, against  their  will,  to  keep  a  particular  employe  in  their  service. 

5.  The  fact  that  employes  of  railroads  may  quit  under  circumstances  that 

would  show  bad  faith  upon  their  part,  or  a  reckless  disregard  of  their 
contract  or  of  the  convenience  and  interests  of  both  employer  and  the 
public,  does  not  justify  a  departure  from  the  general  rule  that  equity 
will  not  compel  the  actual,  affirmative  performance  of  merely  personal 
services,  or  (which  is  the  same  thing)  require  employes,  against  their 
will,  to  remain  in  the  personal  service  of  their  employer. 

6.  Tliese  employes  having  taken  service  first  with  the  company,  and  after- 

ward with  the  receivers,  under  a  general  contract  of  employment 
which  did  not  limit  the  exercise  ot  ihe  right  to  quit  the  service,  their 
peaceable  co-operation,  as  the  result  of  friendly  argument,  persuasion, 
or  conference  among  themselves,  in  asserting  the  right  of  each  and  all 
to  refuse  further  service  under  aschedule  of  reduced  wages,  would  not 
have  been  illegal  or  criminal,  although  they  may  have  so  acted  in  the 
firm  belief  and  expectation  that  a  simultaneous  quitting  without  notice 
would  temporarily  inconvenience  the  receivers  and  the  public.  If  in 
good  faith,  and  peaceably,  they  exercise  their  right  of  quitting  the  serv- 
ice, intending  tliereby  only  to  better  their  condition  by  securing  such 
wages  as  they  deem  just,  but  not  to  injure  or  interfere  with  the  free 
action  of  others,  they  can  not  be  legally  charged  with  any  loss  to  the 
trust  property  resulting  from  their  cessation  of  work  in  consequence  of 
the  refusal  of  the  receivers  to  accede  to  the  terms  upon  which  they 
were  willing  to  remain  in  the  service.  Such  a  loss,  under  the  circum- 
stances stated,  would  be  incidental  to  the  situation,  and  could  not  be 
attributed  to  employes  exercising  their  lawful  rights  in  orderly  ways, 
or  to  the  receivers,  when,  in  good  faith  and  in  fidelity  to  their  trust,  they 
declare  a  reduction  of  wages,  and  thereby  cause  dissatisfaction  among 
employes,  and  their  withdrawal  from  service. 


ARTHUR  ET  AL.  v.  0AKE3  ET  AL, 


171 


8, 


Acoonliiig  to  the  principles  of  the  common  law,  a  conspiracy  upon  the 
part  of  two  or  more  perBons,  with  the  intent,  by  their  combined  power, 
to  wrong  others  or  to  prejudice  the  righta  oi  the  public,  is  in  itself 
illegal,  although  nothing  be  actually  done  in  execution  of  such  eun- 
spiracy.  This  is  fundamental  in  our  jurisprudence.  So,  a  combination 
or  conspiracy  to  procure  an  employe  or  body  of  employ*,  i  to  quit  serv- 
ice in  violation  of  the  contract  of  service  would  ho  unlawful,  and  in 
a  proi^er  case  might  be  enjoined,  if  the  injury  threatened  would  be 
irremediable  at  law. 
An  intent,  upon  the  part  of  a  single  person,  to  injun  tlie  rightsof  otli"i-s 
or  of  th  •  public,  is  not  in  itself  a  wrong  of  v^hich  the  law  will  take 
cognizance,  unless  some  injurious  act  be  done  in  execution  A  the  un- 
lawful intent;  but  a  combination  of  two  or  more  persons  with  such  an 
intent,  and  under  circumstances  that  give  them,  when  so  combined,  a 
l)Ower  to  do  an  injury  they  would  not  possess  as  individuals  acting 
singly,  has  always  been  recognized  as  in  itself  wrongful  and  illegal. 

9.  It  seems  entirely  clear,  u\xm  authority,  that  any  combination  or  con- 
spiracy upon  the  part  of  these  employes  would  be  illegal  which  has  for 
its  object  to  cripple  the  property  in  the  hands  of  the  receivers,  and  to 
embarrass  the  operation  of  the  railroads  under  their  management, 
either  by  disabling  or  rendering  unfit  for  use,  engines,  cars  or  other 
property  in  their  hands,  or  by  interfering  with  their  possession,  or  by 
actually  obstructing  their  control  and  management  of  the  property,  or 
by  using  force,  intimidation,  threats,  or  other  wrongful  methods  against 
the  receivers  or  their  agents,  or  against  employes  remaining  in  their 
service,  or  by  using  like  methods  to  cause  employes  to  quit,  or  prevent 
or  deter  others  from  entering  the  service  in  place  of  those  leaving  it. 
The  act  of  Congress  of  June  29,  1886,  legalizing  the  incorporation  of 
national  trade  unions  (24  Stat.  86,  c.  667),  does  not  sanction  illegal  com- 
binations. 

In  the  absence  of  evidence,  it  can  not  be  held,  as  a  matter  of  law,  that  a 
combination  among  employes,  having  for  its  object  their  orderly  with- 
drawal in  large  numbers,  or  in  a  body,  from  the  service  of  their  em- 
ployers, on  account  simply  of  a  reduction  in  their  wages,  is  not  a 
"  strike,"  within  the  meaning  of  that  word  as  commonly  used.  Such  a 
withdrawal,  although  amounting  to  a  strike,  is  not  illegal  or  criminal. 

12.  Circumstances  stated  under  which  a  court  of  equity  may  interfere  to 
prevent  strikes  or  illegal  interference  witli  property. 


10, 


11 


'  !!J 


Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Eastern  District  of  Wisconsin. 

Petition  by  P.  M.  Arthur  and  others  to  modify  certain 
injunctions  issued  in  a  consolidated  suit  brought  by  the 
Farmers'  Loan  &  Trust  Company  and  others  against  the 
Northern  Pacific  Railroad  Company  and  its  receivers,  Thomas 
F.  Oakes,  Henry  C.  Payne,  and  Henry  C.  Rouse.  60  Fed.  803. 
The  injunctions  were  only  modified  in  part,  and  the  petitioners 
appeal. 


172 


AMERICAN  CRIMINAL  REPORTS. 


r.;-i: 


Qnarlea,  Spence  tfe  Quarles,  for  appellants. 
George  P.  Miller^  for  appellees. 

Before  Harlan,  Circuit  Justice,  Woods,  Circuit  Judge,  and 
Bunn,  District  Judge. 

Harlan,  C.  J.  The  questions  before  us  relate  to  the  power 
of  a  court  of  equity,  having  custody,  by  receivers,  of  the  rail- 
road and  other  property  of  a  corporation,  to  enjoin  combina- 
tions, conspiracies  or  acts  upon  the  part  of  the  receivers'  em- 
ployes and  their  associates  in  labor  organizations,  which  if  not 
restrained,  would  do  irreparable  mischief  to  such  property,  and 
prevent  the  receivers  from  discharging  the  duties  imposed  by 
law  upon  the  corporation. 

The  original  bill  was  filed  on  behalf  of  stockholders  and 
creditors  of  the  Northern  Pacific  Railroad  Company,  a  cor- 
poration created  by  an  act  of  Congress,  and  had  for  its  general 
object  the  administration  under  the  direction  of  the  court,  of 
the  entire  railroad  system,  lands  and  assets  of  that  corpora- 
tion, and  the  enforcement  of  the  respective  rights,  liens  and 
equities  of  its  preferred  and  common  stockholders,  bondhold- 
ers and  creditors. 

The  railroad  company  aaving  filed  its  answer,  receivers 
were  appointed,  with  authority  to  take  immediate  possession 
of  its  railroads  and  other  property,  and  to  exercise  its  author- 
ity and  franchises,  conduct  its  business  and  occupation  as  car- 
rier of  passengers  and  freight,  discharge  the  public  duties  obli- 
gatory upon  it,  or  upon  any  of  the  corporations  whose  lines  of 
road  were  in  its  possession,  preserve  the  property  in  proper 
condition  and  repair  so  as  to  be  safely  and  advantageously 
used,  protect  the  title  and  possession  of  the  same,  and  employ 
such  persons  and  make  such  payments  and  disbursements  as 
were  needful.  The  receivers  were  also  authorized  to  manage 
all  other  property  of  the  company  at  their  discretion,  and  in 
such  manner  as  in  their  judgment  would  produce  the  most  sat- 
isfactory results  consistent  with  the  discharge  of  the  public 
duties  imposed  on  them,  and  to  fix  the  compensation  of  officers, 
attorneys,  managers,  superintendents,  agents  and  employes  in 
their  service.  It  was  further  ordered  that  an  injunction  issue 
against  the  defendant  and  all  claiming  to  act  by,  through,  or 
under  it,  and  against  all  other  persons,  to  restrain  them  from 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


173 


interfering  with  the  receivers  in  taking  possession  of  and  man- 
aging the  property. 

Subsequently,  the  Farmers'  Loan  &  Trust  Company,  as 
trustea  for  the  holders  of  bonds  and  collateral  trust  indentures, 
filed  an  original  bill  in  the  same  court  against  the  Northern 
Pacific  Railroad  Company,  the  individual  plaintiffs  in  the  fiirst 
suit,  and  the  receivers.  The  relief  asked  was  that  the  plaintiff, 
as  trustee  under  the  mortgages  named  in  the  bill,  be  placed  in 
possession  of  the  mortgaged  premises,  or  that  receivers  of 
the  rights,  franchises  and  property  of  the  railroad  company  be 
appointed  with  authority  to  operate  its  railroads  and  carry  on 
its  business  under  the  protection  of  the  court;  that  the  liens  cre- 
ated by  the  several  mortgages  be  ascertained  and  declared;  and 
that  the  mortgaged  property,  in  certain  contingencies,  be  sold, 
and  the  proceeds  applied  according  to  the  rights  of  parties. 

The  railroad  having  appeared  in  that  suit,  an  order  was 
entered  appointing  the  same  persons  receivers  who  were  ap- 
pointed in  the  first  suit,  and  the  two  suits  were  consolidated, 
to  proceed  together  under  the  title  of  the  Farmers^  Loan  tit 
Trust  Company  v.  Northern  Pacific  RailroatJ  Company,  etc. 

By  a  writ  of  injunction  dated  December  19, 1893,  the  officers, 
agents  and  employes  of  the  receivers,  including  engineers, 
firemen,  trainmen,  train  dispatchers,  telegraphers,  conductors, 
switchmen  and  all  persons,  associations,  combinations,  volun- 
tary or  otherwise,  whether  in  the  service  of  the  receivers  or 
not,  were  enjoined — 

From  disabling,  or  rendering  in  any  wise  unfit  for  conven- 
ient and  immediate  use,  any  engine,  cars  or  other  property  of 
the  receivers; 

From  interfering  in  any  manner  with  the  possession  of  loco- 
motives, cars  or  property  of  the  receivers,  or  in  their  custody; 

From  interfering  in  any  manner,  by  force,  threats,  or  other- 
wise, with  men  who  desire  to  continue  in  the  service  of  the 
receivers,  or  with  men  employed  by  them  to  take  the  place  of 
those  who  quit; 

From  interfering  with  or  obstructing  in  any  wise  the  opera- 
tion of  the  railroad,  or  any  portion  thereof,  or  the  running  of 
engines  or  trains  thereou  as  usual; 

From  any  interference  with  the  telegraph  lines  of  the  receivers 
along  the  lines  of  railways  operated  by  them,  or  the  operation 
thereof; 


1 

H 

iH^^H  hI^^Hw 

1 

f 

1 

ft' 


I 

'i 

I 


174 


AMERICAN  CRIMINAL  REPORTS. 


From  combining  and  conspiring  to  quit,  with  or  without 
notice,  the  service  of  said  receivers,  with  the  object  and  intent 
of  crippling  the  property  in  their  custody  or  embarrassing  the 
operation  of  said  railroad,  and  from  so  quitting  the  service  of 
the  said  receivers,  with  or  without  notice,  as  to  cripple  the 
property  or  prevent  or  hinder  the  operation  of  said  railroad  ; 
and,  generally, 

From  interfering  with  the  officers  and  agents  of  the  re- 
ceivers or  their  employes  in  any  manner,  by  actual  violence  or 
by  intimidation,  threats  or  otherwise,  in  the  full  and  complete 
possession  and  management  of  the  railroad  and  of  all  the 
property  thereunto  pertaining,  and  from  interfering  with  any 
and  all  pro|)erty  in  the  custody  of  the  receivers,  whether  be- 
longing to  them  or  to  shipjiers  or  other  owners,  and  from 
interfering  with,  intimidating,  or  otherwise  injuring  or  incon- 
veniencing or  delaying  the  passengers  being  transported  or 
about  to  be  transported  over  the  railway  of  the  receivers,  or  any 
portion  thereof,  or  by  interfering  in  any  manner,  by  actual 
violence  or  threat,  and  otherwise  preventing  or  endeavoring  to 
prevent  the  shipment  of  freight  or  the  transportation  of  mails 
of  the  United  States  over  the  road  operated  by  the  receivers, 
until  the  further  order  of  this  court. 

This  injunction  was  based  on  a  petition  of  the  receivers, 
urging,  in  view  of  the  general  depression  in  the  business  of 
transportation,  the  necessity  of  reducing  expenses,  and  repre- 
senting to  the  court  that  many  employes  were  threatening 
that  if  their  compensation  were  diminished  as  indicated  in  a 
revised  schedule  of  wages  which  the  receivers  had  adopted,  to 
take  effect  January  1,  1894,  they  would  prevent  or  obstruct 
the  operation  of  the  railroads  in  the  hands  of  the  receivers. 

Upon  the  filing  of  the  petition  and  before  the  writ  of  injunc- 
tion was  issued,  the  court  adjudged  and  decreed  that  the 
receivers 

"  Be,  and  they  are  hereby  authorized  and  instructed,  to  put 
in  operation  and  maintain  upon  the  Northern  Pacific  liail- 
road,  the  revised  schedule  and  rates  more  specifically  in  said 
petition  described,  and  ordered  by  said  receivers  to  take  effect 
January  1,  A.  D.  1894,  and  for  that  purpose  and  to  that  end, 
their  action  in  abrogating  and  revoking  the  schedules  in  force 
on  said  railroad  at  the  time  of  their  appointment  as  such  re- 
ceivers August  15,  1893,  is  hereby  confirmed." 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


175 


A  second  writ  of  injunction  was  issued  Decembar  22,  1893. 
It  was  based  on  a  supplemental  petition  of  the  receivers,  and 
was  in  all  respects  like  the  former  one,  except  that  it  contained, 
in  addition,  a  clause  by  which  the  persons  and  associations  to 
whom  it  was  addressed  were  enjoined — 

From  combining  or  conspiring  together,  or  with  others, 
either  jointly  or  severally,  or  as  committees,  or  as  officers  of 
any  so-called  labor  organization,  with  the  design  or  purpose 
of  causing  a  strike  upon  the  lines  of  railroad  operated  by  said 
receivers,  and  from,  oi'dering,  recommending,  approving  or 
advising  others  to  quit  the  service  of  the  receivers  of  the  Northern 
Pacific  Railroad  Company  on  January  1,  189J^,  or  at  any 
other  time,  and  from  ordering,  recommending,  advising  or 
approving,  by  communication  or  instruction  or  otherwise,  the 
employes  of  said  receivers,  or  any  of  them,  or  of  said  North- 
ern Pacific  Kailroad  Company,  to  join  in  a  strike  on  said 
January  1,  1894:,  or  at  any  other  time,  and  from  ordering, 
recommending  or  advising  any  committee  or  committees, 
or  class  or  classes  of  employes  of  said  receivers,  to  strike  or 
join  in  a  strike,  on  January  1,  1894,  or  at  any  other  time, 
until  the  further  ortler  of  this  court. 

The  appellants,  as  chief  executive  officers,  respectively,  of 
tlie  Brotherhood  of  Locomotive  Engineers,  the  Order  of 
Railway  Conductors,  the  Brotherhood  of  Locomotive  Fire- 
men, the  Order  of  Railway  Telegraphers,  the  Brotherhood 
of  Railway  Trainmen,  and  the  Switchmen's  Mutual  Aid  Asso- 
ciation, appeared  in  court  on  behalf  of  themselves  and  their 
respective  organizations  and  associations,  as  well  as  on  behalf 
of  such  employes  of  the  receivers  as  were  mer.^bers  of  those 
associations  and  organizations,  or  of  some  of  them,  and  moved 
that  the  court  modify  the  orders  and  injunctions  of  December 
19,  1893,  and  December  22, 1893— 

(1)  By  striking  from  both  writs  of  injunction  these  words : 
"  And  from  combining  and  conspiring  to  quit,  with  or  without 
notice,  the  service  of  said  receivers,  with  the  object  and  intent 
of  crippling  the  property  in  their  custody  or  embarrassing  the 
operation  of  said  railroad,  and  from  so  quitting  the  service  of 
said  receivers,  with  or  without  notice,  as  to  cripple  the  prop- 
erty or  pi'event  or  hinder  the  operation  of  said  railroad." 

(2)  By  striking  from  the  writ  of  injunction  of  December  22, 
1893,  the  above  clause  or  paragraph  relating  specially  to 


fi 


-1. 


■iX 


m 


176 


AMERICAN  CRIMINAL  REPORTS. 


"  strikes."  which  was  not  in  the  writ  issued  December  19, 1 803. 
The  motion  Avas  in  writing,  and  upon  its  face  purported  to 
be  based  on  the  petition  and  supplemental  petition  tiled  by  the 
receivers,  on  the  orders  of  the  court  made  December  19  and 
22,  1893,  respectively,  and  on  the  above  writs  of  injunction. 
Beyond  the  facts  set  out  in  those  petitions,  the  only  evidence 
adduct'd  at  the  hearing  of  the  motion  was  documentary  in  its 
nature,  to  wit,  the  constitutions  and  by-laws  of  the  associations 
whose  principal  officers  had  been  permitted  to  intervene  in  the 
cause. 

The  court,  upon  the  hearing  of  the  motion,  modified  the 
writ  of  injunction  of  December  22, 1893,  by  striking  therefrom 
the  above  words  in  italics :  "  and  from  ordering,  recommend- 
ing, approving  or  advising  others  to  quit  the  service  of  the 
receivers  of  the  Northern  Pacific  Railway  Company  on  Janu- 
ary 1,  1894,  or  at  any  other  time." 

The  grounds  upon  which  these  words  were  stricken  from 
the  second  writ  of  injunction  are  thus  stated  in  the  opinion  of 
the  court : 

"In  fairness  this  clause  must  be  read  in  the  light  of  the  statements  of 
t'le  petition.  It  was  therein  asserted  to  the  court  that  the  men  would  not 
strike  unless  ordered  so  to  do  by  the  executive  heads  of  the  national  labor 
organizations,  and  that  the  men  would  obey  such  orders,  instead  of  follow- 
ing the  direction  of  the  court.  The  clause  is  specially  directed  to  the  chiefs 
of  the  several  labor  organizations.  The  use  of  the  words,  '  order,  recom- 
mend, approve,  or  advise '  was  to  meet  the  various  forms  of  expression 
under  which,  by  the  constitution  or  by-laws  of  these  organizations,  the 
command  was  cloaked,  as,  for  instance,  in  one  organization  the  chief  head 
*  advises '  a  strike;  in  another,  he  '  approves '  a  strike;  in  another,  he  '  recom- 
mends' the  quitting  of  employment.  Whatever  terms  may  he  employed, 
the  effect  is  the  same.  It  is  a  command  which  may  not  bt)  disregarded, 
under  penalty  of  expulsion  from  the  order  and  of  social  ostracism.  This 
language  was  employed  to  fortify  the  restraints  of  the  other  i)ortions  of  the 
writ,  and  to  meet  the  various  disguises  under  which  the  command  is  cloaked. 
It  was  so  inserted  out  of  abundant  caution,  that  the  meaning  of  the  court 
might  be  clear;  that  there  should  be  no  luiwarrantable  interference  with 
this  property,  no  intimidation,  no  violence,  no  strike.  It  was  perhaps  un- 
necessary, being  comprehended  within  the  clause  restraining  the  heads  of 
these  organizations  from  ordering,  recommending,  or  advising  a  strike,  or 
joinder  in  a  strike. 

"  It  is  said,  however,  that  the  clause  restrains  an  individual  from  friendly 
advice  to  the  employes  as  a  body,  or  individually,  as  to  their  or  his  best 
interest  in  respect  of  remaining  in  the  service  of  the  receivers.  Read  in 
the  light  of  the  petitions  upon  which  the  injunction  was  founded,  I  do  not 
think  that  such  construction  can  be  indulged  by  any  fair  and  impartial 


ARTHUR  ET  AL.  r.  OAKES  ET  AL. 


17' 


i 


mind.  It  might  be  used  as  a  text  for  a  declamatory  address  to  exi-ito  tlio 
passions  and  prejudices  of  men,  but  could  not.  I  think,  be  suwteptihle  of 
sucii  strained  construction  by  a  judicial  mind.  The  laufpiage  of  the  writ 
of  injunction  should,  however,  be  clear  and  explicit,  and,  if  possible,  alxjvo 
criticism  as  to  its  meaning.  Since,  therefore,  the  language  of  this  particu- 
lar phrase  may  be  misconceived,  and  the  restraint  intended  is,  in  njy  judg- 
ment, comprehended  within  the  other  provisions  of  the  writ,  the  motion 
in  that  respect  will  be  granted,  and  the  clause  stricken  from  the  writ." 

Except  in  the  particulars  mentioned  in  the  opinion  of  the 
circuit  court,  the  motion  to  modify  the  injunctions  was  denied, 
and  the  injunctions  continued  in  force.  Of  this  action  of  the 
court  the  interveners  complain. 

In  considering  the  important  questions  presented  by  the 
record,  we  have  assumed,  as  did  the  circuit  court,  the  truth 
of  all  the  material  facts  set  out  in  the  petition  and  supple- 
mental petition  of  the  receivers.  This  is  the  necessary  result 
of  the  interveners  having  based  their  motion  on  those  petitions, 
and  on  the  orders  of  the  court  directing  writs  of  injunction  to 
be  issued.  As  those  orders  were  based  on  the  petitions  of  the 
receivers,  it  must  be  taken  that  the  interveners,  although  insist- 
ing that  the  injunction  should  have  been  modified  to  the  full 
extent  indicated  by  their  motion,  concede,  for  the  purposes  of 
the  motion,  the  facts  to  be  as  alleged  in  those  petitions. 

It  is  consequently  to  be  regarded  as  undisputed  in  this  cause 
that  at  the  time  the  writ  of  December  19,  181)3,  was  issued, 
some  of  the  railroad  employes  were  giving  it  out  and  threat- 
ening that  if  the  revised  schedules  and  rates  in  question  wore 
enforced  they  would  suddenly  quit  the  services  of  the  receivers; 
by  tiireats,  force,  and  violence  would  compel  other  employes 
to  quit  such  service,  and  by  organized  effort  and  intimidation 
prevent  others  from  taking  the  places  of  those  who  might 
quit;  would  disable  locomotives  and  cars  so  that  they  could 
not  be  safely  used,  or  used  only  after  expensive  repairs;  would 
take  possession  of  the  cars,  engines,  shops  and  road-bods  in  the 
l)ossession  pf  the  receivers,  and  otherwise  prevent  their  being 
used;  would  so  conduct  themselves  with  regard  to  the  property 
in  the  hands  of  the  receivers  as  to  hinder  and  embarrass  thorn, 
their  otUcers  and  agents,  in  its  management  and  in  the  oper- 
ation of  trains;  and  that  such  dissatisfied  employes,  and  others 
not  in  the  employ  of  the  receivers,  but  co-operating  with  thono 
employes  from  a  spirit  of  sympathy  or  mischief,  would,  unless 
restrained  by  the  order  of  court,  have  carried  out  their  threats, 
13 


r<  '.1 


1  •       • 

m 


I  {  A   i 


I 


M 

»  1 

;  ( 


178 


AMERICAN  CRIMINAL  REPORTS. 


with  the  result  that  the  receivers  would  not  only  have  been 
compelled  to  abandon  the  revised  schedules  and  rates  proposed 
to  be  enforced,  but  would  have  been  disabled  from  operating- 
the  railroads  in  their  custody,  from  discharging  their  duties  to 
the  public  as  carriers  of  passengers  and  freight,  and  from  trans- 
porting the  mails  of  the  United  States,  bringing  thereby  incal- 
culable loss  upon  the  trust  property,  as  well  as  causing 
inconvenience  and  hardship  to  the  public,  particularly  to  the 
people  in  that  part  of  the  country  traversed  by  the  Northern 
Pacific  Railroad,  who  were  dependent  upon  the  regular,  con- 
tinuous operation  of  that  road  for  commercial  facilities  of  every 
kind,  as  well  as  for  fuel,  provisions  and  clothing. 

It  will  be  observed  that  the  motion  of  the  interveners  does 
not  question  the  power  of  the  court  to  restrain  acts  upon  the 
part  of  the  employes  or  others  which  would  have  directly  in- 
terfered with  the  receivers'  possession  of  the  trust  property, 
or  obstructed  their  control  and  management  of  it,  as  well  as 
attempts  by  force,  intimidations,  or  threats,  or  otherwise,  to 
molest  or  interfere  with  persons  who  remained  in  the  service 
of  the  receivers  or  with  others  who  were  willing  to  take  the 
places  of  those  withdrawing  from  such  service. 

But  it  was  contended  that  the  circuit  court  exceeded  its 
powers  when  it  enjoined  the  employes  of  the  receivers  "  from 
combining  and  conspiring  to  quit,  with  or  without  notice,  the 
service  of  said  receivers,  with  the  object  and  intent  of  crip- 
pling the  property  in  their  custody,  or  embarrassing  the  opera- 
tion of  said  railroad,  and  from  so  quitting  the  service  of  sai«! 
receivers,  with  or  without  notice,  as  to  cripple  the  property, 
or  prevent  or  hinder  the  operation  of  said  railroad." 

This  clause  embodies  two  distinct  propositions — one,  relat- 
ing to  combinations  and  conspiracies  to  quit  the  service  of  the 
receivers  with  the  object  and  intent  of  crippling  the  property 
or  embarrassing  the  operation  of  the  railroads  in  their  charge; 
the  other,  having  no  reference  to  combinations  and  conspira- 
cies to  quit,  or  to  the  object  and  intent  of  any  quitting,  but 
only  to  employes  "  so  quitting  "  as  to  cripple  the  property  or 
prevent  or  hinder  the  operation  of  the  railroad. 

Considering  these  propositions  in  their  inverse  order,  we 
remark  that  the  injunction  against  employes  so  quitting  as  to 
cripple  the  property  or  prevent  or  hinder  the  operation  of  the 
railroad  was  equivalent  to  a  command  by  the  court  that  they 


I 


led 


s« 


ARTHUR  ET  AL.  V.  OAKES  ET  AL. 


179 


should  remain  in  the  active  employment  of  the  receivers,  and 
perform  the  services  appropriate  to  their  respective  positions, 
until  they  could  withdraw  without  crii)pling  the  property  or 
preventing  or  hindering  the  ojieration  of  the  railroa<l.  The 
time  when  they  could  quit  without  violating  the  injunction  is 
not  otherwise  indicated  by  the  order  of  the  court. 

Under  what  circumstances  may  the  employes  of  the  receiv- 
ers, of  right,  quit  the  service  in  which  they  are  engaged? 
j\ruch  of  the  argument  of  counsel  was  directed  to  this  question. 
We  shall  not  attempt  to  lay  down  any  general  rule  applicable 
to  every  case  that  may  arise  between  employer  and  emi)loyes. 
If  an  employe  quits  without  cause,  and  in  violation  of  an  ex- 
press contract  to  serve  for  a  stated  time,  then  his  quitting 
would  not  be  of  right,  and  he  would  be  liable  for  any  damages 
resulting  from  a  breach  of  his  agreement,  and  perhaps,  in 
some  states  of  case,  to  criminal  prosecution  for  loss  of  life  or 
limb  by  passengers  or  others,  directly  resulting  from  his  aban- 
doning his  post  at  a  time  when  care  and  watchfulness  were 
required  upon  his  part  in  the  discharge  of  a  duty  he  had  un- 
dertaken to  perform.  And  it  may  be  assumed  for  the  pur- 
poses of  this  discussion  that  he  would  be  liable  in  like  manner 
where  the  contract  of  service,  by  necessary  implication  arising 
out  of  the  nature  or  the  circumstances  of  the  employment,  re- 
quired him  not  to  quit  the  service  of  his  employer  suddenly, 
and  without  reasonable  notice  of  his  intention  to  do  so. 

But  the  vital  question  remains  whether  a  court  of  equity 
will,  under  any  circumstances,  by  injunction,  prevent  one  in- 
dividual from  quitting  the  personal  service  of  another  ?  An 
affirmative  answer  to  this  question  is  not,  we  think,  justified 
by  any  authority  to  which  our  attention  has  been  called  or  of 
which  we  are  aware.  It  would  be  an  invasion  of  one's  natural 
liberty  to  compel  him  to  work  for  or  to  remain  in  the  personal 
service  of  another.  One  who  is  placed  under  such  constraint 
is  in  a  condition  of  involuntary  servitude — a  condition  which 
the  supreme  law  of  the  land  declares  shall  not  exist  within  the 
United  States,  or  in  any  place  subject  to  their  jurisdiction. 
Courts  of  equity  have  sometimes  sought  to  sustain  a  contract 
for  services  requiring  special  knowledge  or  peculiar  skill,  by 
enjoining  acts  or  conduct  that  would  constitute  a  breach  of 
such  contract.  To  this  class  belong  the  cases  of  singers,  actors 
or  musicians,  who,  after  agreeing  for  a  valuable  consideration 


mm 

1 

m 

aE^ 

!i 

m 

}  ii 


180 


AMERICAN  CRIMINAL  REPORTS. 


I 

! 


iy 


W:'l> 


liiii' 


to  give  their  professional  services,  at  a  named  place  and  dur- 
ino-  a  specified  time,  for  the  benefit  of  certain  parties,  refuse 
to  meet  their  engagement,  a"d  undertake  to  appear  during  the 
same  period  for  the  benefit  of  other  parties  at  another  place. 
Zumlei/  V.  Wagner,  1  De  Gex,  M.  &  G.  604,  617;  Id.,  5  De  Gex 
&  S.  485, 16  Jur.  871;  Montague  v.  Flockton,  L.  R.,  16  Eq.  180. 
While  in  such  cases  the  singer,  actor  or  musician  has  been  en- 
joined from  appearing  during  the  period  named  at  a  place  and 
for  parties  different  from  those  specified  in  his  first  engage- 
ment, it  was  never  supposed  that  the  court  could,  by  injunc- 
tion, compel  the  affirmative  performance  of  the  agreement  to 
sing  or  to  act  or  to  play.  In  Powell  Diiffryn  Steam-Coal  Co. 
V.  Taff  Vale  Ry.  Co.,  9  Ch.  App.  331,  335,  Lord  Justice  James 
observed  that  when  what  is  required  is  not  merely  to  restrain 
a  party  from  doing  an  act  of  wrong,  but  to  oblige  him  to  do 
some  continuous  act  involving  labor  and  care,  the  court  has 
never  found  its  way  to  do  this  by  injunction.  In  the  same 
case  Lord  Justice  Mellish  stated  the  principle  still  more 
broadly,  perhaps  too  broadl}^  when  he  said  that  a  court  can 
only  order  the  doing  of  something  which  has  to  be  done  once 
for  all,  so  that  the  court  can  see  to  its  being  done. 

The  rule,  we  think,  is  without  exception  that  equity  will  not 
compel  the  actual,  affirmative  performance  by  an  emploj'e  of 
merely  personal  services,  any  more  than  it  will  compel  an  em- 
ployer to  retain  in  his  personal  service  one  who,  no  matter  for 
what  cause,  is  not  acceptable  to  him  for  service  of  that  char- 
acter. The  right  of  an  employe  engaged  to  perform  a  per- 
sonal service  to  quit  that  service  rests  upon  the  same  basis  as 
the  right  of  his  employer  to  discharge  him  from  further  per- 
sonal service.  If  the  quitting  in  the  one  case  or  the  discharg- 
ing in  the  other  is  in  violation  of  the  contract  between  the  par- 
ties, the  one  injured  by  the  breach  has  his  action  for  damages; 
and  a  court  of  equity  will  not,  indirectly  or  negatively,  by 
means  of  an  injunction  restraining  the  violation  of  the  con- 
tract, compel  the  affirmative  performance  from  day  to  day  or 
the  affirmative  acceptance  of  merely  personal  services.  Re- 
lief of  that  character  has  always  been  regarded  as  impracti- 
cable. Toledo,  A.  A.  <&  N.  M.  Ry.  Co.  v.  Pennsylvania  Co.,  54 
Fed.  730,  740,  Taft,  J.,  and  authorities  cited ;  Fry,  Spec.  Perf. 
(3d  Am.  Ed.),  §§  87-91,  and  authorities  cited. 

It  is  supposed  that  these  principles  are  inapplicable  or  should 


ARTHUR  ET  AL.  r.  OAKES  ET  AL. 


181 


not  be  applied  in  the  caso  of  employes  of  a  railroad  company, 
which,  under  legislative  sanction,  constructs  and  maintains  a 
public  highway  primarily  for  the  convenience  of  the  people, 
and  in  the  regular  operation  of  which  the  public  are  vitally  in- 
terested. Undoubtedly  the  simultaneous  cessation  of  work  by 
any  considerable  number  of  the  employes  of  a  railroad  corpo- 
ration, without  previous  notice,  will  have  an  injurious  effect, 
and  for  a  time  inconvenience  the  public.  But  these  evils,  great 
as  they  are,  and  although  arising  in  many  cases  from  the  in- 
considerate conduct  of  employes  and  employers,  both  equally 
indifferent  to  the  general  welfare,  are  to  be  met  and  remedied 
by  legislation  restraining  alike  employes  and  employers  so 
far  as  necessary  adequately  to  guard  the  rights  of  the  pub- 
lic as  involved  in  the  existence,  maintenance  and  safe  manage- 
ment of  public  highways.  In  the  absence  of  legislation  to  the 
contrary,  the  right  of  one  in  the  service  of  a  (^uasi  public  cor- 
poration to  withdraw  therefrom  at  such  time  as  he  sees  lit, 
and  the  right  of  the  managers  of  such  a  corporation  to  dis- 
charge an  employe  from  service  whenever  they  see  fit,  must  be 
deemed  so  Uv  absolute  that  no  court  of  equity  will  compel  him, 
against  his  will,  to  remain  in  such  service,  or  actually  to  per- 
form the  personal  acts  required  in  such  employments,  or  com- 
pel such  managers,  against  their  will,  to  keep  a  particular  em- 
ploye in  their  service.  It  was  competent  for  the  receivers  in 
this  case,  subject  to  the  approval  of  the  court,  to  adopt  a 
schedule  of  wages  or  salaries,  and  say  to  employes,  "  We  will 
pay  according  to  this  schedule,  and  if  you  are  not  willing  to 
accept  such  wages  you  will  be  discharged."  It  was  compe- 
tent for  an  employe  to  say,  "  I  will  not  remain  in  your  service 
under  that  schedule,  and  if  it  is  to  be  enforced  I  wull  withdraw, 
leaving  you  to  manage  the  property  as  best  you  may  without 
my  assistance."  In  the  one  case,  the  exercise  by  the  receivers 
of  their  right  to  adopt  a  new  schedule  of  wages,  could  not,  at 
least  in  the  case  of  a  general  employment  without  limit  as  to 
time,  be  made  to  depend  upon  considerations  of  hardship  and 
inconvenience  to  emi)loyes.  In  the  other,  the  exercise  by  em- 
ployes of  their  right  to  quit  in  consequence  of  a  proposed 
reduction  of  wages  could  not  be  made  to  depend  upon  consid- 
erations of  hardship  or  inconvenience  to  those  interested  in  the 
trust  property  or  to  the  public.  The  fact  that  employes  of 
railroads  may  quit  under  circumstances  that  would  show  bad 


n  V 


1S2 


AMERICAN  CRIMINAL  REPORTS. 


t:i. 


V 


faith  upon  their  part,  or  a  reckless  disregard  of  their  contract 
or  of  the  convenience  and  interests  of  both  employer  and  the 
public,  does  not  justify  a  departure  from  the  general  rule  that 
equity  will  not  compel  the  actual,  affirmative  performance  of 
merelv  personal  services,  or  (which  is  the  same  thing)  require 
employes,  against  their  will,  to  remain  in  the  personal  service 
of  their  employer. 

The  result  of  these  views  is  that  the  court  below  should 
have  eliminated  from  the  writ  of  injunction  the  words,  "  and 
from  so  quitting  the  service  of  the  said  receivers,  with  or  with- 
out notice,  as  to  cripple  the  property  or  prevent  or  hinder  the 
operation  of  said  railroad." 

But  different  considerations  must  control  in  respect  to  the 
words  in  the  same  paragraph  of  the  writs  of  injunction,  "and 
from  combining  and  conspiring  to  quit,  with  or  without  notice, 
the  service  of  said  receivers,  with  the  object  and  intent  of 
crippling  the  property  in  their  custody,  or  embarrassing  the 
operation  of  said  railroad." 

We  have  said  that  if  employes  were  unwilling  to  remain  in 
the  service  of  the  receivers  for  the  compensation  prescribed 
for  them  by  the  revised  schedules,  it  was  the  right  of  each  one 
on  that  account  to  withdraw  from  such  service.  It  was 
equally  their  right,  without  reference  to  the  effect  ujion  the 
property  or  upon  the  operation  of  the  road,  to  confer  with 
each  other  upon  the  subject  of  the  proposed  reduction  in 
wages,  and  to  withdraw  in  a  body  from  the  service  of  the  re- 
ceivers because  of  the  proposed  change.  Indeed,  their  right, 
as  a  body  of  employes  affected  by  the  proposed  reduction  of 
wages  to  demand  given  rates  of  compensation  as  a  condition 
of  their  remaining  in  the  service,  was  as  absolute  and  perfect 
as  was  the  right  of  the  receivers  representing  the  aggregation 
of  persons,  creditors,  and  stockholders  interested  in  the  trust 
property,  and  the  general  public,  to  fix  the  rates  they  were 
willing  to  pay  their  respective  emph)yes.  But  that  is  a  very 
different  matter  from  a  combination  and  conspiracy  among 
employes,  with  the  ohject  and  intent,  not  simply  of  quitting  the 
service  of  the  receivers  because  of  the  reduction  of  wages,  but 
of  cri2)pUng  the  property  in  their  hands,  and  emharrassing  the 
operation  of  the  railroad.  When  the  order  for  the  original 
injunction  was  applied  for  it  was  represented — and  the  inter- 
veners admit  by  their  motion  that  it  was  correctly  represented — 


ARTHUR  ET  AL.  v.  0AKE8  ET  AL. 


188 


tliat  unless  the  restraining  power  oi  the  court  was  exerted, 
the  dissatisfied  employes,  and  others  co "operating  with  them, 
would  physically  disable  and  render  unf  i  for  use  the  cars  and 
other  projierty  in  the  possession  of  the  receivers,  and  by  force, 
threats  and  intimidation  used  against  employes  remaining  in 
their  service,  and  against  those  desiring  to  take  the  places  of 
those  (juitting,  would  prevent  the  receivers  from  operating  the 
roads  in  their  custody,  and  from  discharging  the  duties  which 
they  owed  on  behalf  of  the  corporation  to  the  parties  inter- 
ested in  the  trust  property,  to  the  government,  and  to  the 
public. 

The  general  inhibition  against  combinations  and  conspira- 
cies formed  with  the  object  and  intent  of  crippling  the 
property  and  embarrassing  the  ojieration  of  the  railroad  must 
be  construed  as  referring  only  to  acts  of  violence,  intimidation, 
and  wrong  of  the  same  nature  or  class  as  those  specifically 
described  in  the  previous  clauses  of  the  writ.  We  do  not 
interpret  the  words  last  above  quoted  as  embracing  the  case  of 
employes  who,  being  dissatisfied  with  the  proposed  reduction 
of  their  wages,  merely  withdraw  on  that  account,  singly  or 
by  concerted  action,  from  the  service  of  the  receivers,  using 
neither  force,  threats,  persecution,  nor  intimidation  toward 
employes  who  do  not  join  them,  nor  any  device  to  molest, 
hinder,  alarm  or  interfere  with  others  who  take  or  desire 
to  take  their  places.  We  use  the  word  "  device "  here  as 
applicable  to  cases  like  that  of  Sherry  v.  Perkins,  147  Mass. 
212  (17  N.  E.  307),  in  which  it  appeared  that  parties  belonging 
to  a  labor  organization  displayed  and  maintained  certain  ban- 
ners in  front  of  the  plaintiff's  place  of  business  for  the  purpose 
of  deterring  workmen  from  remaining  in  or  entering  his 
service.  As  the  acts  complained  of  were  injurious  to  the 
plaintiffs  business  and  were  a  nuisance,  it  was  held  that  they 
could  be  reached  and  restrained  by  injunction.  So  in  Sjnn- 
ning  Co.  v.  Riley,  L.  R.,  6  Eq.  551,  equity  interfered  by  injunc- 
tion to  restrain  the  conduct  of  parties,  officers  of  a  trades 
union,  who  gave  notice  to  workmen,  by  means  of  placards  and 
advertisements,  that  they  were  not  to  hire  themselves  to  the 
plaintiff  pending  a  dispute  between  the  union  and  the  plaintiff. 
See,  also.  United  States  v.  Kane,  23  Fed.  748;  Emack  v.  Kane, 
34  Fed.  46;  Ca^ey  v.  Typographical  Union,  45  Fed.  135; 
Walker  v.  Cronin,  107  Mass.  555. 


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184 


AMERICAN  CRIMINAL  REPORT& 


i, 


Those  omployos  having  taken  service  first  with  the  com- 
pany, and  afterward  with  the  receivers,  nnder  a  general 
contract  of  employment,  which  did  not  limit  the  exercise  of 
the  right  to  (juit  the  service,  their  peaceable  co-operation  as 
the  result  of  friendly  argument,  persuasion,  or  conference 
among  themselves,  in  assorting  the  right  of  each  and  all  to 
refuse  further  service  under  a  scheilnlo  of  reduced  wages, 
would  not  have  been  illegal  or  criminal,  although  they  nuiy 
have  so  acted  in  the  finn  belief  and  expectation  that  a  simul- 
taneous quitting  without  notice  would  temporarily  inconven- 
ience the  receivers  and  the  public.  If,  in  good  faith  and 
peaceably,  they  exorcise  their  right  of  quitting  the  service, 
intending  thereby  only  to  better  their  condition  by  securing 
such  wages  as  they  deem  just,  but  not  to  injui-e  or  interfere 
with  the  free  action  of  others,  they  can  not  be  legally  charged 
with  any  loss  to  the  trust  property  resulting  from  their  ces- 
sation of  work  in  consequence  of  the  refusal  of  the  receivers 
to  accede  to  the  terms  upon  which  they  were  willing  to  re- 
main in  the  service.  Such  a  loss,  under  the  circumstances 
stated,  would  be  incidental  to  the  situation,  and  could  not  be 
attributed  to  employes  exercising  lawful  rights  in  orderly 
ways,  or  to  the  receivers,  when,  in  good  faith  and  in  fidelity 
to  their  trust,  they  declare  a  reduction  of  wages,  and  thereby 
cause  dissatisfaction  among  employes,  and  their  withdrawal 
from  service. 

The  combination  or  conspiracies  which  the  law  does  not 
tolerate  are  of  a  different  character.  According  to  the  prin- 
ciples of  the  common  law,  a  conspiracy  upon  the  part  of  two 
or  more  jiersons,  with  the  intent,  by  their  combined  ])ower,  to 
wrong  others,  or  to  prejudice  the  rights  of  the  public,  is  in  it- 
self illegal,  although  nothing  be  actually  done  in  execution  of 
such  conspiracy.    This  is  fundamental  in  our  jurisprudence. 

So  a  combination  or  conspiracy  to  procure  an  employe  or 
body  of  employes  to  quit  service  in  violation  of  the  contract 
of  service  would  be  unlawful,  and  in  a  proper  case  might  be 
enjoined,  if  the  injury  threatened  would  be  irremediable  at 
law.  It  is  one  thing  for  a  single  individual,  or  for  several 
individuals  each  acting  upon  his  own  responsibility  and  not  in 
co-operation  with  others,  to  form  the  purpose  of  inflicting 
actual  injury  upon  the  properly  or  rights  of  others.  It  is 
quite  a  different  thing,  in  the  dye  of  the  law,  for  many  per- 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


185 


sons  to  combine  or  conspire  together  with  the  intent,  not 
simply  of  assorting  their  rights  or  of  accomplishing  lawful  ends 
by  peaceable  methods,  but  of  employing  their  united  energies 
to  injure  others  or  the  public.  An  intent  upon  the  part  of  a 
sin<,'le  person  to  injure  the  rights  of  others  or  of  tlie  public 
is  not  in  itself  a  wrong  of  which  the  law  will  take  cognizance, 
unless  some  injurious  act  be  done  in  execution  of  the  unlawful 
intent.  But  a  combination  of  two  or  more  persons  with  such 
an  intent,  and  under  circumstances  that  give  theni,  when  so 
combined,  a  ])ower  to  do  an  injury  they  would  not  possess  as  in- 
diviiluals  acting  singly,  has  always  been  recognized  as  in 
itself  wrongful  and  illegal. 

The  general  i)rinciple  is  illustrated  in  Callan  v.  Wilson,  127 
U.  S.  540,  555,  8  Sup.  Ct.  1301.  That  was  an  information  in 
the  police  court  of  the  District  of  Columbia  charging  the 
defendants  Callan  and  others  with  a  conspiracy  to  prevent 
certain  named  persons,  who  had  been  expelled  from  a  local 
association,  a  branch  of  a  larger  one  known  as  the  Knights  of 
Libor  of  America,  from  pursuing  their  calling  of  musicians 
anywhere  in  the  United  States.  This  result,  the  information 
charged,  was  to  be  effected  by  the  defendants'  refusing  to  work 
as  musicians,  or  in  any  other  capacity,  with  the  persons  so 
named,  or  with  or  for  any  person,  tirm  or  corporation  working 
with  or  employing  them;  by  procuring  all  other  members  of 
those  organizations,  and  all  other  workmen  and  tradesmen, 
not  to  work  in  any  capacity  with  or  for  them  or  either  of 
them,  or  for  any  tirm  or  corporation  that  employed  either  of 
them;  and  by  warning  and  threatening  every  person,  firm,  or 
corporation  employing  such  obnoxious  jwrsons  that  if  they 
did  not  forthwith  cease  to  employ  and  refuse  to  employ  them, 
they  should  not  receive  the  custom  or  patronage  either  of  the 
persons  so  conspiring,  or  of  other  members  of  said  organiza. 
tions.  The  question  in  the  case  v.  as  whether  the  accused  were 
entitled  to  a  trial  by  jury  or  whether  the  offense  charged  was 
of  the  class  called  "  petty,"  for  the  trial  of  which  a  defendant 
could  not,  at  common  law,  claim,  of  right,  a  jury.  The  court 
held  that  the  offense  charged  was  not  a  petty  or  trivial  one, 
but  one  of  a  grave  character,  affecting  the  public  at  large,  and 
for  the  trial  of  which  a  jury  was  therefore  demandable  as  of 
right. 

Among  the  authorities  cited  in  that  case  were  Com.  v.  Ilunt^ 


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186 


AMERICAN  CRIMINAL  REPORTS. 


4  Mete.  (Mass.),  Ill,  121,  in  which  it  was  said  that  "the  gen- 
eral rule  of  the  common  law  is  that  it  is  a  criminal  and  indict- 
able olFense  for  two  or  more  to  confederate  and  combine 
together,  by  concerted  means,  to  do  that  which  is  unlawful  or 
criminal,  to  the  injury  of  the  public,  or  portions  or  classes  of 
the  communit}',  or  even  to  the  rights  of  an  individual."  State 
V.  Burnham,  15  N.  H.  39G,  401,  where  it  was  held  that  "  combi- 
nations against  law  or  against  individuals  are  always  dan- 
gerous to  the  public  peace  and  to  public  security;  to  guard 
against  the  union  of  individuals  to  effect  an  unlawful  design 
is  not  easy,  and  to  detect  and  punish  them  is  often  extremely 
difficult;''  and  lieg.  v.  Parnell,  14  Cox  Cr.  Cas.  508,  514, 
where  the  court  observed  that  "  an  agreement  to  effect  an  in- 
jury or  Avrong  to  another  by  two  or  more  persons  is  consti- 
tuted an  offense,  because  tlie  wrong  to  be  effected  by  a  com- 
bination assumes  a  formidable  character;  when  done  by  one 
alone  it  is  but  a  civil  injury,  but  it  assumes  a  formidable  or 
aggravated  character  when  it  is  to  be  effected  by  the  powers 
of  a  combination." 

One  of  the  cases  cited  in  Callan  v.  Wilson  is  Com.  v.  Carlisle, 
Brightly,  N.  P.,  36,  39,  40,  in  which  Mr,  Justice  Gibson  con- 
sidered the  law  of  conspiracy  with  care,  and  among  other 
things  said : 

"There  is  between  the  different  parts  of  the  body  politic  a  reciprocity  of 
action  on  each  other,  which,  lilie  tlie  action  of  antiigonizing  muscles  in  the 
natural  body,  not  only  prescribes  to  each  its  appropriate  state  and  action, 
but  regulates  the  motion  of  the  whob.  The  effort  of  an  individual  to  dis- 
turb this  equilibrium  can  never  be  perceptible,  nor  carry  the  opi-ration  of 
hi  interest  or  that  of  any  other  individual  beyond  the  limits  of  fair  compe- 
tition. But  the  increase  of  power  by  combination  of  means  being  in 
geometrical  proportion  to  the  number  concerned,  an  association  may  be 
able  to  give  an  impulse,  not  only  oppressive  to  individuals,  but  mischievous 
to  the  public  .at  large;  and  it  is  the  employment  of  ;;n  engine  so  powerful 
and  dangerous  that  gives  criminality  to  an  act  that  would  be  perfectly 
innocent,  at  least  in  a  legal  view,  when  done  by  an  individual." 

There  are  many  other  adjudged  cases  to  the  same  effect. 

Instate  v.  Stewart,  59  Vt.  273,  280, 9  Atl.  559,  it  was  held,  after 

an  extended  review  of  the  authorities : 

"  A  combination  of  two  or  more  porsons  to  effect  an  illegal  purpose,  either 
by  legal  or  illegal  means,  whether  such  purpose  be  illegal  at  common  law 
or  by  statute,  or  to  effect  a  legal  purpose  by  illegal  means,  whether  such 
means  be  illegal  at  common  law  or  by  statute,  is  a  common  law  conspiracj'. 
Such  combinations  are  equally  illegal  whether  they  promote  objects  or 
adopt  means  that  are  per  ae  indictable,  or  promote  objects  or  adopt  means 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


187 


that  arc  per  se  oppressive,  immoral  or  wrongfully  prejudicial  to  the  rights 
of  otluTH.  If  they  seek  to  restrain  trade,  or  tend  to  the  destruction  of  the 
mattiiiil  property  of  the  country,  they  work  injury  to  the  whole  people." 

In  iState  v.  Buchanan,i}  Har.  &  J.  317,  352, 3o5, the  court  of 
appeals  of  Maryland  adjudged  : 

"Every  conspiracy  to  do  an  unlawful  act,  or  to  do  a  lawful  act  for  an 
illegal,  fraudulent,  malicious,  or  corrupt  purpose,  or  for  a  purpose  which 
hius  a  ti'iidt'ticy  to  prejudice  the  puhlic  in  general,  is  at  common  law  an 
indictahlo'  ollense,  though  nothing  be  done  in  execution  of  it,  and  no  matter 
by  what  means  the  conspiracy  was  intended  to  be  effected,  which  may  be 
perfectly  indifferent,  and  makes  no  ingredient  of  the  crime,  and  therefoi'e 
need  not  be  stated  in  the  indictment." 

Again: 

"  There  is  nothing  in  the  objection  that  to  punish  a  conspiracy  where  the 
end  is  not  accomplished  would  be  to  punish  a  mere  unexecuted  intention. 
It  is  not  the  bare  intention  that  the  law  punishes,  but  the  act  of  conspiring, 
wliic'li  is  made  a  substantive  offense  by  the  nature  of  the  object  to  be 
effected." 

In  State  v.  Glldden,  55  Conn.  46,  75,  8  Atl.  890,  the  court 

said : 

"  Any  one  man,  or  any  one  of  several  men  acting  independently,  is  pow- 
erless ;  but  when  several  combine,  and  direct  their  united  energies  to  the 
accomplishment  of  a  bad  purpose,  the  combination  is  formidable.  Its  power 
for  evil  increases  as  its  number  increases.  »  »  *  The  combination 
l)eo(tiiies  dangerous  and  subversive  of  the  rights  of  others,  and  the  law 
wisely  says  that  it  is  a  crime  " 

In  Queen  v.  Kenricic,  5  Q.  B.  49,  Chief  Justice  Denman  said 
that  by  the  law  of  conspiracy,  as  it  had  been  administered  for 
at  least  the  previous  hundred  years,  any  combination  to  preju- 
dice another  unlav/fuUy  was  considered  as  constituting  the 
oft'ense,  and  that  the  otfeuhe  consisted  in  the  conspiracy,  and 
not  in  t!ir  acts  committed  for  carrjdng  it  into  effect. 

See,  also,  Carew  v.  Rutherford,  106  Mass.  1,  13;  Steamship 
Co.  V.  McKcnna^  30  Fed.  48 ;  Coevr  d'AItne  C.  cb  31.  Co.  v. 
Minem''  Union,  51  Fed.  260,  267  ;  3  Whart.  Cr.  Law  (8th  Ed.), 
«5  i;]37,  et  seq.;  2  Archb.  Cr.  Pr.  &  PI.  (Pom.  Ed.),  1830,  note; 
2  liisli.  Cr.  Law,  §  180,  et  seq. 

It  seems  entirely  clear,  upon  authority,  that  any  combina- 
tion or  conspiracy  upon  the  part  of  these  employes  would  be 
illegal,  which  has  for  its  object  to  cripple  the  property  in  the 
hands  of  the  receivers,  and  to  embarrass  the  operation  of  the 
railroads  under  their  management,  either  by  disabling  or  ren- 
dering unfit  for  use  engines,  cars  or  other  property  in  their 
hands,  or  by  interfering  with  their  possession,  or  by  actually 
obstructing  their  control  and  management  of  the  property,  or 


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188 


AMERICAN  CRIMINAL  REPORTS. 


by  using  force,  intimidation,  threats  or  other  wrongful 
methods  against  the  receivers  or  their  agents,  or  against  em- 
ployes remaining  in  their  service,  or  by  using  like  methods  to 
cause  employes  to  quit  or  prevent  or  deter  others  from  entering 
the  service  in  place  of  those  leaving  it.  Combinations  of  that 
character  disturb  the  peace  of  society,  and  are  mischievous  in 
the  extreme.  They  imperil  the  interests  of  the  public,  which 
may  rightfully  demand  that  the  free  course  of  trade  shall  not 
be  unreasonably  obstructed.  They  endanger  the  personal  secu- 
rity and  the  personal  liberty  of  individuals  who,  in  the  exercise 
of  their  inalienable  privilege  of  choosing  the  terms  upon 
which  they  shall  labor,  enter  or  attempt  to  enter  the  service 
of  those  against  whom  such  combinations  are  specially  aimed. 
And  as  acts  of  the  character  referred  to  would  have  defeated 
a  proper  administration  of  the  trust  estate,  and  inflicted  irrep- 
arable injury  upon  it,  as  well  as  prejudiced  the  rights  of  the 
public,  the  Circuit  Court  properly  framed  its  injunction  so  as 
to  restrain  all  such  acts  as  are  specifically  mentioned,  as  well 
as  combinations  and  conspiracies  having  the  object  and  intent 
of  physically  injuring  the  property,  or  of  actually  interfering 
with  the  regular,  continuous  operation  of  the  railroad  by  the 
receivers. 

Some  reference  was  made  in  argument  to  the  Act  of  Con- 
gress of  June  29, 1886,  legalizing  the  incorporation  of  national 
Trades  Unions.  24  Stat.  86.  c.  567.  It  is  not  perceived  that 
this  reference  is  at  all  pertinent  to  the  present  discussion. 
That  Act  does  not  in  any  degree  sanction  illegal  combinations. 
It  recognizes  the  legal  character  of  any  association  of  working 
people  having  two  or  more  branches  in  the  states  or  territories 
of  the  United  States,  and  established  "  for  the  purpose  of  aid- 
ing its  members  to  become  more  skillful  and  efficient  workers, 
the  promotion  of  their  general  intelligence,  the  elevation  of 
their  character,  the  regulation  of  their  wages  and  their  hours 
and  conditions  of  labor,  the  protection  of  their  individual 
rights  in  the  prosecution  of  their  trade  or  trades,  the  raising  of 
funds  for  the  benefit  of  the  sick,  disabled  or  unemployed  mem- 
bers or  the  families  of  deceased  members,  or  for  such  other 
object  or  objects  for  which  working  people  may  lawfully  com- 
bine, having  in  view  their  mutual  protection  or  benefit." 
Associations  of  that  character  are  authorized  to  make  and 
establish  such  constitutions,  rules  and  by-laws  as  they  deem 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


189 


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propor  to  carry  out  their  lawful  objects.  Those  objects,  as 
(IctiiKHl  by  Congress,  are  most  praiseworthy,  and  should  bo 
sustained  by  the  courts  whenever  their  power  to  that  end  is 
pro])eily  invoked.  What  we  have  said  about  illegal  combi- 
nations has  no  reference  to  such  associations,  but  only  to 
combinations  formed  with  the  intent  to  employ  force,  intimi- 
dation, threats  or  other  wrongful  methods  whereby  the  pub- 
lic will  be  injured,  or  whereby  will  be  impaired  the  absolute 
right  of  individuals,  whether  belonging  to  such  combinations 
or  not,  to  dispose  of  their  labor  or  pro^jerty  upon  such  terms 
as  to  tliem  seem  best. 

The  principle  that  a  combination  or  conspiracy  of  two  or 
more  persons  to  injure  the  rights  of  others  is  illegal,  although 
nothing  may  have  been  done  in  execution  of  that  intent,  has 
been  embodied  in  the  statutes  of  Wisconsin,  in  which  state  the 
jiresent  cause  is  pending.  By  an  Act  passed  April  2,  1887,  it 
was  declared : 

"All}'  two  or  more  persons  who  shall  combine,  associate,  agree,  mutually 
undertake  or  concert  together  for  the  purjrose  of  wilfully  or  maliciously  in- 
juriiiR  another  in  his  reputation,  trade,  business  or  profession,  by  any  means 
wliatever,  or  for  the  purpose  of  maliciously  compelling  another  to  do  or  per- 
form any  act  against  his  will,  or  preventing  or  hindering  another  from  doing 
or  performing  any  lawful  act,  shall  be  punishable  by  imi)ribonnient  in  the 
county  jail  not  more  than  one  year,  or  by  fine  not  exceeding  five  hundred 
dollars." 

And  by  a  subsequent  Act,  passed  April  8,  1887,  it  was  de- 

clareil : 

"  Any  two  or  more  employers  who  shall  agree,  combine  and  confederate 
to{;etlu'r  for  the  purjjose  of  interfering  with  or  preventing  any  person  or 
persons  seeking  employment,  either  by  threats,  promises,  or  by  circulating 
or  causing  the  circulation  of  a  so-called  black  list,  or  by  any  means  whatso- 
ever, or  for  the  purpose  of  procuring  and  causing  the  discharge  of  any  em- 
ploye or  employes,  by  any  means  whatsoever,  shall  be  deemed  guilty  of 
a  niisilcmeanor,  and  upon  conviction  shall  be  punished  by  imprisonment  in 
the  county  jail  for  a  period  of  not  more  than  one  year ,  or  by  a  fine  of  not 
less  than  fifty  dollars,  or  by  l)oth."  1  Laws  Wis.  1887,  pp.  209,  380,  cc.  287i 
349;  2  Sanb.  &  B.  St.  Wis.,  g§  4466a,  4466b. 

This  legislation  was  followed  by  an  Act  published  May  3, 
1887,  providing : 

"  §  1.  Any  person  who  by  threats,  intimidation,  force  or  coercion  of  any 
kind  shall  hinder  or  prevent  any  other  person  from  engaging  in  or  continu- 
ing in  any  lawful  work  or  employment,  either  for  himself  or  as  a  wage- 
worker,  or  wlio  shall  attempt  to  so  hinder  or  prevent,  shall  be  pmiished  by 
fine  not  exceeding  one  hundred  dollars  or  by  imprisonment  in  the  county 
jail  not  more  than  six  months,  or  by  both  fine  and  imprisonment  in  the  dis- 
cretion of  the  court. 


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AMERICAN  CRIMINAL  REPORTS. 


"  g  2.  Any  person  who  shall  individually  or  in  association  with  one  or 
more  others,  wilfully  Vtreak,  injure  or  remove  any  part  or  parts  of  any  rail- 
way car  or  locomotive,  or  any  other  portable  vehicle  or  traction  engine,  or 
any  part  or  parts  of  any  stationary  engine,  machine,  implement  or  ma- 
chinery, for  tlie  purpose  of  destroying  such  locomotive,  engines,  car,  vehicle, 
implement  or  machinery,  or  of  preventing  the  useful  operation  thereof,  or 
who  shall  in  any  other  way  wilfully  or  maliciously  interfere  with  or  prevent 
the  running  or  operation  of  any  locomotive,  engine  or  machinery,  shall  be 
punished  by  fine  not  exceeding  one  thousand  dollars  or  by  imprisonment  in 
the  county  jail  or  the  state  prison  not  exceeding  two  years,  or  by  both  fine 
and  imprisonment  in  the  discretion  of  the  court."  1  Laws  Wis.,  p.  462,  c. 
427. 

It  thus  appears  that  combinations  and  conspiracies  by  two 
or  more  persons  with  the  intent  to  injure  the  rights  of  others 
were  illegal  at  common  law,  and  are  public  offenses  in  the  state 
where  this  cause  is  ])ending. 

For  the  reason  stated  we  are  of  opinion  that  the  Circuit 
Court  properly  refused  to  strike  from  the  writs  of  injunction 
the  words,  "And  from  combining  and  conspiring  to  quit  with 
or  without  notice  the  service  of  said  receivers,  with  the  object 
and  intent  of  crippling  the  property  in  their  custody,  or  em- 
barrassing the  operation  of  said  railroad." 

We  come  next  to  that  clause  in  the  writ  of  injunction  of 
December  22,  1893,  expressly  relating  to  strikes. 

What  is  to  be  deemed  a  strike,  within  the  meaning  of  the 
order  of  the  Circuit  Court  ?  In  the  opinion  of  the  Circuit 
Judge,  made  a  part  of  the  record,  we  are  informed  that  at  the 
argument  below  the  definition  proffered  to  the  court  by  the 
interveners  as  one  recogtiized  by  the  labor  organizations  of  the 
country  was  as  follows : 

"A  strike  is  a  concerted  cessation  of  or  refusal  to  work  until  or  unless 
certain  conditions  which  obtain  or  are  incident  to  the  terms  of  emjiloyment 
are  changed.  The  employe  declines  to  longer  work,  knowing  full  well  that 
the  employer  may  immediately  employ  another  to  fill  his  place,  also  knowing 
that  he  may  or  may  not  be  re-employed  or  returned  to  service.  The  em- 
ployer has  the  option  of  acceding  to  the  demand  and  returning  the  old  em- 
ploye to  service,  of  employing  new  men,  or  of  forcing  conditions  under 
whidi  the  old  men  are  glad  to  return  to  service  under  the  old  conditions." 

The  learned  Circuit  Judge  said  that  a  more  exact  definition 
of  a  strike  was  "  A  combined '  ffort  among  workmen  to  compel 
the  master  to  the  concession  of  a  certain  demand  by  preventing 
the  conduct  of  his  business  until  compliance  with  the  demand," 
and  he  said : 

"  It  is  idle  to  talk  of  a  peaceful  strike.  None  such  ever  occurred.  The 
Buggestion  is  an  impeachment  of  intelligence.    All  combinations  to  interfere 


ARTHUR  ET  AL  V.  OAKES  ET  AL. 


191 


with  perfect  freedom  in  the  proper  management  of  one's  lawful  hiiHincvH, 
to  dictate  tlie  terms  upon  which  such  business  shall  be  conducted,  by  niiMUiH 
of  threats  or  by  interference  with  property  or  traffic,  or  with  the  lawful 
employment  of  others,  are  within  the  condemnation  of  the  law.  It  has  Inton 
well  said  that  the  wit  of  man  could  not  devise  a  legal  strike,  bocausu  com- 
pulsion is  the  leading  idea  of  it.  A  strike  is  essentially  a  conspiracy  to  extort 
by  violence;  the  means  employed  to  effect  the  end  being  not  only  the  ces- 
sation of  labor  by  the  conspirators,  but  by  the  necessary  prevention  of  lalx)r 
by  those  who  are  willing  to  assume  their  places,  and  as  a  last  resort,  an<l  in 
many  instances  an  essentialelementof  success,  the  disabling  and  destruction 
of  tlie  property  of  the  master;  and  so,  by  intimidation  and  by  the  compulsion 
of  force,  to  accomplish  the  end  designed." 

Under  this  view  of  the  nature  and  objects  of  strikes  the  in- 
junction was  direct;  \  generally,  against  combinations  and 
conspiracies  upon  the  part  of  employes  with  the  design  or 
purpose  of  causing  a  strike  on  the  lines  of  railroad  operated  by 
the  receivers;  against  the  ordering,  recommending,  advising, 
or  approving  the  employes  to  join  in  a  strike;  and  against  the 
ordering,  recommending,  or  advising  any  committee  or  class 
of  employes  to  strike,  or  to  join  in  a  strike. 

If  the  word  "  strike  "  means  in  law  what  the  circuit  court 
held  it  to  mean,  the  order  of  injunction,  so  far  as  it  rolat(?8 
to  strikes,  is  not  liable  to  objection  as  being  in  excess  of  the 
power  of  a  court  of  equity.  Indeed,  upon  the  facts  presented 
by  the  receivers  and  admitted  by  the  motion  of  intervenors,  it 
was  made  the  duty  of  the  court  to  exert  its  utmost  authority 
to  protect  both  the  property  in  its  charge  and  the  interests  of 
tlie  public  against  all  strikes  of  the  character  described  in  tlio 
opinion  of  the  circuit  judge. 

But  in  our  judgment  the  injunction  was  not  sufficiently 
specific  '.n  respect  to  strikes.  We  are  not  prepared,  in  the  ab- 
sence of  evidence,  to  hold,  as  matter  of  law,  that  a  combina- 
tion among  employes,  having  for  its  object  their  orderly  with- 
drawal in  large  numbers  or  in  a  body  from  the  service  of  their 
employers,  on  account  simpl}"^  of  a  reduction  in  their  wages,  is 
not  a  "strike,"  within  the  meaning  of  the  word  as  commonly 
used.  Such  a  withdrawal,  although  amounting  to  a  strike,  is 
not,  as  we  have  already  said,  either  illegal  or  criminal.  In 
Farrer  v.  Close,  L.  K.,  4  Q.  B.  602,  612,  Sir  James  Ilannon, 
afterward  Lord  of  Appeal  in  ordinary,  said : 

"lam,  however,  of  opinion  that  strikes  are  not  necesBarily  illegal,  A 
'  strike '  is  properly  defined  as  '  a  simultaneous  cessation  of  work  on  the  part 
of  the  workmen';  and  its  legality  or  illegality  must  depend  on  the  means 
by  which  it  is  enforced,  and  on  its  objects.    It  may  be  criminal,  as  if  it  bo 


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192 


AMERICAN  CRIMINAL  REPORTS. 


a  part  of  a  combination  for  the  purpose  of  injuring  or  molesting  eitlicr 
masters  or  men;  or  it  may  be  simply  illegal,  as  if  it  be  the  result  of  nn 
agi-eement  dejjriving  those  engaged  in  it  of  their  liberty  of  action,  siiiiilnr 
to  that  by  which  the  employers  bound  tiiemselves  in  the  case  of  Hilton  v. 
Eckersley,  6  El.  &  Bl.  47,  66;  or  it  may  be  perfectly  innocent,  as  if  it  be  the 
result  of  the  voluntary  combination  of  the  men  for  the  purpose  only  of 
Iwnefiting  themselves  by  raising  their  wages,  or  for  the  purpose  of  com- 
pelling the  fulfillment  of  an  engagement  entered  into  between  employers 
and  employes,  or  any  other  lawful  purpose." 

In  our  opinion  tlie  order  sliould  describe  more  distinctly 
than  it  does,  the  strikes  which  the  injunction  was  intended  to 
restrain.  That  employes  and  their  associates  may  not  unwit- 
tingly place  themselves  in  antagonism  to  the  court's  authority, 
and  become  subject  to  fine  and  imprisonment  as  for  contempt, 
the  order  should  indicate  more  clearly  than  has  been  done  that 
the  strikes  intended  to  be  restrained  were  those  designed  to 
physically  cripple  the  trust  property,  or  to  actually  obstruct 
the  receivers  in  the  operation  of  the  road,  or  to  interfere  with 
their  employes  who  do  not  wish  to  quit,  or  to  prevent,  by 
intimidation  or  other  wrongful  modes,  or  by  any  device,  the 
employment  of  others  to  takt  the  places  of  those  quitting, 
and  not  such  as  were  the  result  of  the  exercise  by  employes, 
in  peaceable  ways,  of  rights  clearly  belonging  to  them,  and 
were  not  designed  to  embarrass  or  injure  others,  or  to  inter- 
fere with  the  actual  possession  and  management  of  the  proj)- 
erty  by  the  receivers. 

In  our  consideration  of  this  case  we  have  not  overlooked  the 
observations  of  counsel  in  respect  to  the  use  of  special  injunc- 
tions to  prevent  wrongs  which,  if  committed,  may  be  other- 
wise reached  by  the  courts.  It  is  quite  true  that  this  part  of 
the  jurisdiction  of  a  court  of  equity  should  be  exercised  with 
extreme  caution,  and  only  in  clear  cases.  Brown  v.  JVewall, 
2  Mylne  &  C.  558,  570.  Mr.  Justice  Baldwin,  in  Bonaparte  v. 
liailroad  Co.,  Ealdw.  205,  217,  Fed.  Cas.  No.  1617,  properly 
said: 

"There  is  no  power,  the  exercise  of  which  is  more  delicate,  which 
requires  greater  caution,  deliberation  and  sound  discretion,  or  is  more  dan- 
gerous in  a  doubtful  case,  than  the  issuing  an  injunction.  It  is  the  strong 
arm  of  equity,  that  never  ought  to  be  extended,  unless  in  cases  of  great 
injury,  where  courts  of  law  can  not  afford  an  adequate  or  commensurate 
remedy  in  damages.  The  right  must  be  clear,  the  injury  impending  or 
threatened,  so  as  to  be  averted  only  by  the  protecting  preventive  process  of 
injunction;  but  that  will  not  be  awarded  in  doubtful  cases,  or  new  ones  not 
coming  within  well-established  principles,  for  if  it  issues  erroneously  an 
irreparable  injury  is  inflicted,  for  which  there  can  be  no  redress,  it  being 


(  'i*  -"' 


ARTHUR  ET  AL.  v.  OAKES  ET  AL. 


193 


tlio  act  of  a  court,  not  of  the  party  who  prays  for  it.  It  will  be  refused 
till  the  fojirt  are  satisfied  that  the  case  before  them  is  of  a  right  about  to 
be  destroyed,  irreparably  injured,  or  great  and  lasting  injury  about  to  be 
done  by  an  illegal  act.  In  such  a  case  the  court  owes  it  to  its  own  suitors 
and  ita  own  principles  to  administer  the  only  remedy  the  law  allows  to  pre- 
vent the  commission  of  the  act." 

The  authorities  all  agree  that  a  court  of  equity  should  not 
hesitate  to  use  this  power  when  the  circumstances  of  the  par- 
ticular case  in  hand  require  it  to  be  done  in  order  to  protect 
rights  of  ]iroperty  against  irreparable  damage  by  wrongdoers. 
It  is,  Justice  Story  said,  because  of  the  varying  circumstances 
of  cases,  "  that  courts  of  equity  constantly  decline  to  lay  down 
any  rule  which  shall  limit  their  power  and  discretion  as  to  the 
particular  cases  in  which  such  injunctions  shall  be  granted  or 
withheld."  "  And,"  the  author  proceeds,  "  there  is  wisdom  in 
this  course,  for  it  is  impossible  to  foresee  all  the  exigencies  of 
sdciety  which  may  require  their  aid  and  assistance  to  protect 
rights  or  redress  wrongs.  The  jurisdiction  of  these  courts, 
thus  operating  by  special  injunction,  is  manifestly  indispen- 
sable for  the  purposes  of  social  justice  in  a  great  variety  of 
cases,  and  therefore  should  be  fostered  and  upheld  by  a  steady 
confidence."    Story,  Eq.  Jur.,  §  959b. 

In  using  a  special  injunction  to  protect  the  property  in  the 
custody  of  the  receivers  against  threatened  acts  which  it  is 
admitted  would,  if  not  restrained,  have-  been  committed,  and 
would  have  inflicted  irreparable  loss  upon  that  property,  and 
seriously  prejudiced  the  interests  of  the  public,  as  involved  in 
the  regular,  continuous  operation  of  the  Northern  Pacific  Rail- 
road, the  Circuit  Court,  except  in  the  particulars  indicated, 
did  not  restrain  any  act  which,  upon  the  faces  admitted  by  tnc- 
motion,  it  was  not  its  plain  duty  to  restrain.  No  other  rem- 
edy was  full,  adequate  and  complete  for  the  protection  of  the 
trust  property,  and  for  the  preservation  of  the  rights  of  indi- 
vidual suitors  and  of  the  public  in  its  due  and  orderly  admin- 
istration by  the  court's  receivers. 

"  It  is  not  enough,"  the  court  said  in  Boyce's  Exr%.  v.  Grxindy, 
3  Pet.  210,  "  that  there  is  a  remedy  at  law.  It  must  be  plain 
and  adequate,  or,  in  other  words,  as  practical  and  efficient  to 
the  ends  of  justice  and  its  prompt  administration,  as  the 
remedy  in  equity."  And  the  application  of  the  rule  that 
equity  will  not  interfere  where  there  is  an  adequate  remedy  at 
law  must  depend  upon  the  circumstances  of  each  case  as  it 
18 


yM 


194 


AMERICAN  CRIMINAL  REPORTS. 


arises.  Watsov,  v.  Sutherland,  6  Wall,  74,  79.  That  some  of 
the  acts  enjoined  would  have  been  criminal,  subjecting  the 
wrongdoers  to  actions  for  damages  or  to  criminal  prosecution, 
does  not  therefore  in  itself  determine  the  question  as  to  in- 
terference by  injunction.  If  the  acts  stopped  at  crime,  or  in- 
volved merely  crime,  or  if  the  injury  threatened  could,  if  done, 
be  adequately  compensated  in  damages,  equity  Avould  not  in- 
terfere. But  as  the  acts  threatened  involved  irreparable 
injury  to  and  destruction  of  property  for  all  the  purposes  for 
which  that  property  was  adapted,  as  well  as  continuous  acts 
of  trespass,  to  say  nothing  of  the  rights  of  the  public,  the  rem- 
edy at  law  would  have  been  inadequate.  "  Formerly,"  Mr. 
Justice  Story  says,  "courts  of  equity  were  extremely  reluc- 
tant to  interfere  at  all,  even  in  regard  to  cases  of  repeated  tres- 
passes. But  now  there  is  not  the  slightest  hesitation,  if  the 
acts  done,  or  threatened  to  be  done,  to  the  property  would  be 
ruinous  or  irreparable,  or  would  impair  the  just  enjoyment 
of  the  property  in  future.  If,  indeed,  courts  of  equity  did 
not  interfere  in  cases  of  this  sort,  there  would,  as  lias  been 
truly  said,  be  a  great  failure  of  justice  in  this  country."  2 
Story,  Eq.  Jur.,  §  928.  So,  in  respect  to  acts  which  constitute 
a  nuisance  injurious  to  property,  if  "  the  injury  is  of  so  ma- 
terial a  nature  that  it  can  not  be  well  or  fully  compensated  by 
the  recovery  of  damages,  or  be  such  as  from  its  continuance 
and  permanent  mischief  might  occasion  a  constantl}'  recurring 
grievance,  a  foundation  is  laid  for  the  interference  of  the  court 
by  way  of  injunction."  Kerr,  Inj.  166,  c.  6,  and  authorities 
there  cited.  This  jurisdiction,  the  author  says,  was  formerly 
exercised  sparingly  and  with  caution,  "  but  it  is  now  fully 
established,  and  will  be  exercised  as  freely  as  in  other  cases  in 
which  the  aid  of  the  court  is  sought  for  the  purpose  of  pro- 
tecting legal  rights  from  violation." 

In  the  course  of  the  argument  some  reference  was  made  to 
the  Act  of  Congress  of  July  2,  1890,  entitled  •'  An  Act  to  pro 
tect  trade  and  commerce  against  unlawful  restraints  and  mo- 
nopolies." 26  Stat.  209.  It  is  not  necessary  in  this  case  to 
decide  whether,  within  the  meaning  of  that  statute,  the  acts 
and  combinations  against  which  the  injunction  was  aimed 
would  have  been  in  restraint  of  trade  or  commerce  among 
the  several  states.  This  case  was  not  based  upon  that  act. 
The  questions  now  before  the  court  have  been  determiued 


ARTHUR  ET  AL,  v.  OAKES  ET  AL. 


195 


without  reference  to  the  above  act,  and  upon  the  general  prin- 
ciples that  control  the  exercise  of  jurisdiction  by  courts  of 
equity. 

For  the  reasons  we  have  stated  the  order  com])lained  of  is 
reversed  in  part,  and  the  cause  is  remanded  with  directions  to 
sustain  the  motion  to  strike  out  and  modify  the  injunction  to 
the  extent  indicated  in  this  opinion. 

Reversed. 

Note, — In  restraint  of  commerce — Monopoly, — Where  employes  enter  into 
a  lawful  combination  to  control,  by  artificial  means,  the  supply  of  labor, 
preparatory  to  a  demand  for  an  advance  in  wages,  a  combination  of  eniiiloy- 
ers  to  resist  such  artificial  advance  is  lawful,  since  it  is  not  made  to  lower 
the  price  of  labor,  as  regulated  by  supply  and  demand. 

It  is  not  unlawful  coercion  when  a  combination  of  employers  prevents 
dealei-s  in  the  supplies  used  by  such  employers  from  selling  to  an  employer 
who  is  not  a  member  of  their  combination,  and  who  concedes  a  demand  of 
tlie  employes,  by  informing  such  dealers  that  no  member  of  the  combination 
would  buy  from  them  if  they  sold  to  such  employer.  These  two  conditions 
were  diagnosed  and  decided  in  Cote  v.  Murphy,  159  Pa.  St.  420,  by  the  court 
in  the  following  language:  We  then  have  these  facts,  somewhat  peculiar 
in  the  administration  of  justice:  A  plaintiff  suing  and  recovering  damages 
for  an  alleged  unlawful  act,  of  which  he  himself,  in  so  far  as  he  aided  the 
workmen's  combination,  is  also  guilty,  and  both  acts  springing  from  the 
same  source — a  contest  between  employers  and  emploj^  as  to  the  price  of 
daily  wages — and  then  the  further  fact  that  this  contest,  instead  of  damag- 
ing him,  resulted  largely  to  his  profit.  We  assume,  so  far  as  concerns 
defendants,  if  their  agreement  was  unlawful,  or,  if  lawful,  it  was  carried 
out  by  unlawful  acts,  to  the  damage  of  plaintiff,  the  judgment  should  stand. 
All  the  authorities  of  this  state  go  to  show  that,  while  the  act  of  an  individ- 
ual may  not  be  unlawful,  yet  the  same  act,  when  committed  by  a  combina- 
tion of  two  or  more,  may  be  unlawful,  and  therefore  be  actionable.  A 
didum  of  Lord  Denman  in  Rex  v.  Seii'iird,  1  Adol.  &  E.  711,  gives  this 
definition  of  a  "conspiracy:"  "It  is  either  a  combination  to  procure  an 
unlawful  object,  or  to  procure  a  lawful  object  by  unlawful  means."  This 
leaves  still  undetermined  the  meaning  to  be  given  the  words  "  lawful "  and 
"  unlawful,"  in  their  connection  in  the  antithesis.  An  agreement  may  be 
unlawful,  in  the  sense  that  the  law  will  not  aid  in  its  enforcement  or  rec- 
ognize it  as  binding  vi\yon  those  who  have  made  it,  yet  not  unlawful  in  the 
sense  that  it  will  punish  those  who  are  parties  to  it,  either  criminally  or  by 
a  verdict  in  damages.  Lord  Denman  is  reported  to  have  said  afterward  in 
Reg.  V.  Peck,  9  Adol.  &  E.  690,  that  his  definition  was  not  very  correct.  See 
note  to  section  2391,  3  Whart.  Crim.  Law.  It  is  conceded,  however,  in  the 
case  in  hand,  any  one  of  defendants,  acting  for  himself,  had  a  right  to  refuse 
to  sell  to  those  favoring  the  eight-hour  day,  and  so,  acting  for  himself,  had 
the  right  to  dissuade  others  from  selling.  If  the  act  were  unlawful  at  all, 
it  was  because  of  the  combination  of  a  number.  Gibson,  J.,  in  Com.  v. 
Carlisle,  Brightly,  N.  P.,  40,  says :  "  Where  the  act  is  lawful  for  the  indi- 
vidual, it  can  be  the  subject  of  conspiracy,  when  done  in  concert,  only  where 


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AMERICAN  CRIMINAL  REPORTS. 


tliore  is  a  direct  intention  that  injury  slmll  rcflult  from  it,  or  where  the 
object  is  to  benefit  the  conspirators  to  tlie  prejudice  of  tiie  public  or  t  lie 
oppression  of  individuals,  and  wliere  Buoii  prejudice  or  oppression  is  thi- 
natural  and  necessary  conse(iuence."  In  tlio  same  case  it  is  held:  "A 
combination  is  criminal  wherever  the  act  to  be  done  has  a  necessary  tend- 
ency to  prejudice  the  public,  or  to  oppress  individuals  by  unjustly  subject- 
ing them  to  the  power  of  the  confederacy,  and  giving  effect  to  the  puriwucs 
of  the  latter,  whether  of  extortion  or  niischief.  According  to  this 
view  of  the  law,  a  combination  of  employers  to  depress  the  wages  of 
journeymen  below  what  they  would  be  if  there  was  no  recurrence  to 
artificial  means  on  either  side  is  criminal."  This  case  puts  the  law 
against  the  combination  in  as  strong  terms,  if  not  stronger,  than  any  others 
of  our  own  state.  The  significant  qualification  of  the  general  principle,  ns 
mentioned  in  the  hust  three  lines,  will  be  noticed:  "  If  there  was  no  recur- 
rence to  artificial  means  on  either  side."  The  prejudice  to  the  public  is  the 
use  of  artificial  means  to  affect  prices,  whereby  the  public  suffers.  A  com- 
bination of  stockbrokers,  to  corner  a  stock;  of  farmers,  to  raise  the  price  of 
grain;  of  manufacturers,  to  raise  the  price  of  their  product;  of  employers, 
to  reduce  the  price  of  labor;  of  workmen,  to  raise  the  price — were  at  tlic 
date  of  that  decision,  at  common  law,  all  conspiracies.  The  fixed  theory  of 
courts  and  legislators  then  was  that  the  price  of  everything  ought  to  be,  and 
in  the  absence  of  combination  necessarily  would  be,  regulated  by  supply  and 
demand.  The  first  to  deny  the  justice  of  this  theory  and  to  break  away  from 
it,  was  labor;  and  this  was  soon  followed  by  the  legislation  alreadj- noticed, 
relieving  workmen  from  the  penalties  of  what  for  more  than  a  century  hail 
been  declared  unlawful  combinations  or  conspiracies.  Wages,  it  was  argu»Ml, 
should  be  fixed  by  the  fair  projwrtion  labor  had  contributed  in  production. 
The  market  price,  determined  by  supply  and  demand,  might  or  might  not 
be  fair  wages — often  was  not — and  as  long  as  workmen  were  not  free,  by 
combination,  to  insist  on  their  right  to  fair  wages,  oppression  by  capital,  or, 
which  is  the  same  thing,  by  their  employers,  followed.  It  is  not  our  busi- 
ness to  pass  on  the  soundness  of  the  theories  which  prompt  the  enactment 
of  statutes.  One  thing,  however,  is  clear:  The  moment  the  legislature 
relieves  one,  and  by  far  the  larger  numV)er,  of  the  citizens  of  the  common- 
wealth from  the  common-law  prohibitions  agaii)«t  combinations  to  raise 
the  price  of  labor,  and  by  a  combination  the  price  was  raised,  down  went 
the  foundation  on  which  common-law  conspiracy  was  based,  as  to  that  par- 
ticular subject.  Before  .any  legislation  on  the  (juestion.  it  was  held  that  a 
combination  of  workmen  to  raise  the  price  of  labor,  or  of  emploj-ers  to 
depress  it,  was  unlawful,  because  such  combination  interfered  with  the 
price,  which  woidd  otherwise  be  regulated  by  supply  and  demand.  This 
interference  was  in  restraint  of  trade  or  business,  and  prejudicial  to  the 
public  at  large.  Such  combination  made  an  artificial  price.  Workmen, 
by  reason  of  the  combination,  were  not  willing  to  work  for  what,  other- 
wise, they  would  accept.  Employers  would  not  pay  what,  otherwise,  they 
would  consider  fair  wages.  Supply  and  demand  consist  in  the  amount  of 
labor  for  sale,  and  the  needs  of  the  employer  who  buys.  If  more  mei.  offer 
to  sell  labor  than  are  needed,  the  price  goes  down,  and  the  employer  buys 
cheap.  If  fewer  than  re([uired  offer,  the  price  goes  up,  and  he  buys  dear. 
As  every  seller  and  buyer  is  free  to  bargain  for  himself,  the  price  is  regu- 
lated solely  by  supply  and  demand.    On  this  reasoning  was  founded  com- 


by 


ARTHUll  ET  AL.  v.  OAKES  ET  AL. 


107 


mon-law  conspiracy,  in  this  class  of  cases.  But  in  this  cai?  thn  workmen, 
witiioiit  regard  to  the  supply  of  laJx>r,  (jr  the  demand  for  it,  agreed  upon 
what,  in  tlieir  judgment,  waa  a  fair  price,  and  then  combined  in  a  demand 
for  payment  of  that  price.  Wlien  refused,  in  pursutmce  of  tlie  combination 
they  quit  work,  and  agreed  not  to  work  until  the  demand  was  conceded. 
Further,  they  agree,  by  lawful  means,  to  prevent  all  others,  not  members 
of  the  combination,  from  going  to  work  until  the  employers  agree  to  pay 
the  price  fixed  by  the  combination.  And  this,  as  long  as  no  force  was  used, 
or  menaces  to  person  or  property,  they  had  a  lawful  right  to  do;  and,  so  far 
a^  is  known  to  us,  the  rise  demanded  by  them  may  have  been  a  fair  one. 
But  it  is  nonsense  to  say  that  this  was  a  price  fixed  by  supply  and  demand. 
It  was  fixed  by  a  combination  of  workmen  on  their  combined  judgment  as 
to  its  fairness;  and,  that  the  supply  might  not  lessen  it,  they  combined  to 
prevent  all  other  workmen  in  the  market  from  accepting  less.  Then  fol- 
lowed the  combination  of  employers,  not  to  lower  the  wages  heretofore 
paid,  but  to  resist  the  demand  of  a  combination  for  an  advance;  not  to 
resist  an  advance  which  would  naturally  follow  a  limited  supply  in  the 
market,  for  the  supply,  so  far  as  the  workmen  belonging  to  the  combina- 
tion were  concerned,  was,  by  combination,  wholly  witlulrawn,  and,  as  to 
workmen  other  than  members,  to  the  extent  of  their  power,  they  kspt  them 
out  of  the  market.  By  artificial  means,  the  market  supply  was  almost 
wholly  cut  off.  The  combination  of  the  employers,  then,  was  not  to  inter- 
fere with  the  price  of  lalxir.  as  determined  by  the  common-law  theory,  but 
to  defend  themselves  against  a  demand  made  altogether  regardless  of  the 
price,  as  regulated  by  the  supply.  The  element  of  an  unlawful  combination 
to  restrain  trade  because  of  greed  of  jirofit  to  themselves,  or  of  malice 
toward  plaintiff  or  others,  is  lacking,  and  this  is  the  essential  element  on 
which  is  founded  all  the  decisions  as  to  common-law  conspiracy  in  this 
class  of  cases;  and,  however  unchanged  may  be  the  law  as  to  combinations 
of  employers  to  interfere  with  wages,  where  such  combinations  take  the 
initiative,  they  certainly  do  not  depress  a  market  price,  wlien  they  combine 
to  resist  a  combination  to  artificially  advance  price.  "The  reason  of  the 
law  is  the  life  of  the  law,"  and,  as  given  in  the  cases  cited  by  appellee,  irre- 
sistibly impels  to  the  conclusion  that  the  combination  here  was  not  unlaw- 
ful; a  conclusion  which  is  clearly  indicated  in  Cum.  v,  Carlisle,  siqyra — 
tiiat  it  would  not  be  unlawful  if  there  was  first  recurrence  to  artificial  means 
by  workmen  to  raise  the  market  price.  Here,  the  first  step  provocative  of 
a  combination  by  the  employers  was  an  attempt,  by  lawful,  artificial  means 
on  part  of  the  workmen,  to  control  the  supply  of  labor.  i)reparatory  to  a 
demand  for  an  advance.  Nor  does  the  fact  that  the  appellee  was  not  a 
workman,  nor  a  member  of  any  of  the  unions  of  workmen,  put  him  in  any 
better  attitude  than  if  he  were.  He  undertook,  for  his  own  profit,  to  aid 
the  cause  of  the  workmen.  His  right  so  to  do  was  unquestionable.  But  if 
the  employers,  by  a  lawful  combination,  could  limit  his  ability  so  to  do, 
they  did  not  make  themselves  answerable  in  damages  to  him  for  the  conse- 
quences of  a  lawful  act. 

The  case  of  Morris  Rnn  Coal  Co.  v.  Barcla;/  Coal  Co.,  68  Pa.  St.  173,  is 
not  in  point.  It  was  the  attempt  to  enforce  the  collection  of  a  draft  given 
by  one  member  of  a  combination  formed  to  raise  the  price  of  coal  to  another, 
in  consideration  of  certain  stipulations  in  the  agreement.  It  was  held  that 
the  combination,  baing  in  restraint  of  trad?,  was  unlawful,  and  as  the  draft 


'ilF' 


i"i  /': 


w 

w 

m 

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ml 

H 1 

"H  "^ 

!  ,  /■;, 


'i 


iv    I 


JDS 


AJIEUICAN  CRIMINAL  REPORTS. 


was  Riven  in  pursnnnoc  of  tlio  unlawful  fontract,  it,  alHo,  wjw  tainti-il  with 
the  illegality,  ami  then'  I'ould  be  no  recovery.  Hut.  if  the  aKi'*^>einent  itwll 
were  not  unlawful,  were  the  niethodH  to  carry  it  out  unlawful?  If  tiit 
eniployerB*  conibinution  here  had  uwil  illegal  methodH  or  nieanu  to  prevent 
other  tlealerB  from  selling  8Upi)lii'H  to  plaintitf,  the  conspiracy  niiKht  still 
have  been  found  to  exist.  The  tlu'itatn  referred  to,  altliouj;h  what  are 
usually  termed  "  threats,"  were  not  so  in  a  lej^al  sense.        »        #        » 

But  without  regard  to  whether  the  ^I'MTal  rule  b«!  setth-d  by  wei^^ht  of 
>  tthority,  as  claimed  by  appellants,  we  hold  here  that  this  cond)inatiiiii 
was  not  unlawful,  because  (1)  it  was  not  made  to  lower  the  price  of  wap's, 
as  regulated  by  the  supply  and  demand,  but  to  resist  an  artifl<-ial  price  made 
by  a  combination  which,  by  statute,  was  not  unlawful;  {2)  the  metlioils 
adopted  to  further  the  objt'cts  of  the  combinatitm  were  not  unlawful. 

Ill  Re,  Di'bs,  yetitioner,  158  U.  S.  504,  the  Supreme  Court  of  the  Ljiited 
States,  speaking  through  Mr.  Justice  Brewer,  sayis:  The  govenunent  of  the 
United  States  has  jurisdicticm  over  every  foot  of  soil  within  its  territory, 
and  acts  directly  ujxm  each  citizen.  While  it  is  a  govenunent  of  enumer- 
ated jiowers,  it  has  full  attributi's  of  sovereignty  within  the  limits  of  those 
jtowers,  among  which  are  the  power  over  interstate  commerce  and  the 
power  over  the  transnussion  of  the  mails.  The  powei"H  thus  c*)nf  erred  are  not 
dormant,  but  have  been  assumed  and  put  into  practical  ext-rcise  by  con- 
gressional legislation.  In  the  exercise  of  those  jjowers  the  United  Stiites 
may  remove  everything  put  upon  highways,  natural  or  artificial,  to  obstruct 
the  passage  of  interstate  commerce,  or  the  carrying  of  the  mails. 

While  it  may  be  competent  for  the  government,  through  the  executive 
branch  and  in  the  use  of  the  i-ntire  executive  jHJwer  of  the  Nati<m,  to  for- 
cibly remove  all  such  obstructions,  it  is  equally  within  its  competency  to 
appeal  to  the  civil  couits  for  an  intpiiry  and  determination  as  to  the  exist- 
ence and  the  character  of  any  one  of  them,  and  if  such  are  found  to  exist 
or  threaten  to  occur,  to  invoke  the  powers  of  those  courts  to  remove  or  re- 
strain them,  the  jurisdiction  of  courts  to  interfere  in  such  matters  by  in- 
junction being  recognized  from  ancient  times  and  by  indubittd)le  authority. 

Such  jurisdiction  is  not  ousted  by  the  fact  that  the  obstructions  are  ac- 
companied by  or  consist  of  acts  in  themselves  violations  of  the  criminal  law 
or  by  the  fact  that  the  proceedings  in  contempt,  as  the  penalty  for  a  vio- 
lation of  such  injunction  is  no  substitute  for,  and  no  defense  to,  a  prose- 
cution for  criminal  offenses  comitted  in  the  course  of  such  violation. 

Such  an  injunction  having  been  issued  and  served  upon  the  defendants, 
the  circuit  court  had  authority  to  inijuire  whether  its  orders  had  been  dis- 
obeyed, and  when  it  found  that  they  had  been  disobeyed,  to  proceed  under 
Rev.  Stat,  g  725,  and  to  enter  the  order  of  punishment  complained  of.  The 
circuit  court  having  full  jurisdiction  in  the  premises,  its  findings  as  to  the 
act  of  disobedience  are  not  open  to  review  on  habeas  corpus  in  this  or  any 
other  court  (the  latter  stcatement  is  too  broad).  The  court  might  exceed  its 
authority,  might  render, a  judgment  which  would  be  absolutely  void,  and 
it  is  haidly  necessary  to  cite  authorities  to  show  that  habean  corpus  may  lie. 
(SeeGarvey's  case,  4  Am.  Or.  R.  254;  Lowryv.  Harurd,  5  Id.  273;  Gilbert  v. 
Pease,  Chicago  Law  Journal,  1895,  Ed.) 


Co> 


1.  J 


2.  1 


3.  1 


4.  i 


0.  ' 


9. 

10 


THOMPSON  ET  AL.  v.  STATE. 


191) 


Thompson  et  al.  v.  Statb. 

(106  Ala.  - ;  17  So.  Rep.  512.) 

CoNsnn  vCT   to    Rob:    Evidence— Inatnictiona—Sujflciency  and  effect  of 

evidence. 


1.  An  Indictment  charging  that  dofendanta  "conspired  together  to  unlaw- 

fully take  one  thousand  dollars  in  money,  the  proiwrty  of  J.  H.,  from 
his  ptTson,  and  against  his  will,  by  violence  to  his  person,  or  by  putting 
him  in  such  fear  as  unwillingly  to  part  with  the  same,"  is  analogous  to 
Cr.  Code.  p.  276,  form  76,  and  page  260,  form  20,  prescribing  forms  for 
indictment  for  robbery  and  conspiracy,  and  therefore  complies  with  Id., 
§  4HUt),  providing  tliat  analogous  forms  may  be  used. 

2.  Evidence  that  one  who  testified  on  the  preliminary  examination  is  absent 

from  the  state,  without  any  showing  as  to  the  time  of  his  return,  does 
not  render  admissible  evidence  given  bj  him  on  such  preliminary  ex- 
amination. 

3.  The  fact  that  on  the  preliminary  hearing  the  magistrate  failed  to  take 

down  the  testimony  of  a  witness  in  writing,  aa  reijuired  by  statute,  will 
not  prevent  him  from  giving  the  substance  of  it  on  the  trial  in  case  the 
witness  is  permanently  alwnt  from  the  state. 

4.  A  refusal  to  charge  that,  if  the  jury  believe  the  testimony  of  certain  wit- 

nesses as  to  the  whereabouts  of  defendant  at  the  time  of  the  alleged  of- 
fense, tiiey  will  find  the  defendant  not  guilty,  was  proper. 

5.  Time  and  place  are  a  material  inquiry  in  all  criminal  trials,  whether  or 

not  an  alibi  is  set  up. 
0.  Conspiracy  to  rob  is  in  itself  an  offense,  and  the  conspirators  may  be  con- 
victed thereof,  though  they  were  entra[)i)ed  into  an  attempt  at  its  con- 
summation. 

7.  An  instru<tion  that  the  jury  should  consider  the  testimony  of  a  certain 

witness  on  the  preliminary  examination  with  extreme  caution,  "com- 
ing to  them,  as  it  does,  by  witnesses  who  can't  remember  all  his  testi- 
mony, that  the  same  is  not  in  writing,  and  the  recollection  of  the  wit- 
nesses indistinct,"  was  properly  refused,  as  assuming  as  a  fact  what 
it  was  the  duty  of  the  jury  to  determine,  and  as  being  argumentative. 

8.  The  state  must  prove  that  the  offense  took  place  within  the  time  charged 

in  the  indictment,  but  is  not  bound  by  the  date  given  by  the  witness  for 
the  state. 

9.  An  instruction  which  directs  the  attention  of  the  jury  to  the  testimony 

of  particular  witnesses  is  properly  refused. 

10.  On  a  trial  for  conspiring  to  rob,  it  was  proper  to  refuse  an  instruction 
that,  if  the  jury  could  account  for  defendant's  presence  in  the  house 
where  the  robbery  was  to  be  committed  on  any  other  reasonable 
hypothesis  than  that  of  guilt,  it  was  their  duty  to  acquit,  as  the  defend- 
ant might  have  been  lawfully  at  such  house,  but  yet  be  guilty  of  con- 
spiracy to  rob. 


iK#;-i 


200 


AMERICAN   CRLMINAL  REPORTS. 


1 

i 

1 

't-  -.-     : 

^ 

;  1'  a 

11.  On  a  trial  for  conspiracy  to  rob,  it  is  not  necessar>-  toprove  theamonnt 
which  it  was  intended  to  acquire  by  the  robbery,  tliough  it  is  alleged  in 
tlie  indictment. 

13.  The  coainion-law  oflfense  of  conspiring  to  commit  a  felony,  mulum  in 
86,  in  a  sister  state,  is  indictiible  and  punishable  in  Alabama. 

Appeal  from  Circuit  Court,  Henry  County;  Joiin  R.  Tyson, 
Judge. 

Robert  Thompson  and  another  Avere  jointly  indicted  for  a 
conspiracy  to  rob,  were  convicted,  and  appeal.     lieversed. 

The  two  counts  of  the  indictment  are  copied  in  the  opinion. 
The  state  elected  to  prosecute  for  the  offense  charged  in  the 
first  count  of  the  indictment.  To  this  count  of  the  indict- 
ment the  defendants  demurred  upon  the  following  grounds : 
(1)  Because  it  fails  to  allege  the  character  of  the  money  of 
which  tlie  defendants  conspired  to  rob  IIudsi:)eth,  and  that  the 
money  had  any  value;  (2)  that  no  intent  was  alleged,  nor  was 
the  same  alleged  to  have  been  unlawfully  done;  (3)  that  the 
indictment  was  defective  as  a  common-law  indictment,  and 
fails  to  conform  to  the  statutory  form  in  charging  the  offense 
of  conspiracy  to  rob.  This  demurrer  was  overruled,  and  tlie 
defendants  duly  excepted.  One  Dykes,  a  witness  for  the  state, 
was  absent.  Said  Dj^kes  had  been  examined  on  the  prelimi- 
nary trial  of  the  defendants,  and  the  state  offered  to  prove  by 
the  justice  of  the  peace  before  whom'  the  preliminary  trial 
was  had  what  the  said  Dykes  testified  to  on  said  trial. 
The  evidence  introduced  bv  the  state  showing  the  absence  of 
the  witness  Dykes  is  sufficiently  stated  in  the  opinion.  The 
defendants  objected  to  the  justice  of  the  peace  testifying  to 
what  the  witness  Dykes  had  testified  to  on  the  preliminary 
trial,  on  the  grounds  that  said  Dykes  had  not  been  shown  to 
be  beyond  the  jurisdiction  of  the  court,  and  that  the  defendants 
had  a  right  to  be  confronted  by  the  witnesses  tagainst  them. 
The  court  overruled  this  motion,  and  the  defendants  duly 
excepted.  The  substance  of  the  testimony  of  the  witness 
Dykes  upon  the  preliminary  hearing,  as  testified  to  by  the 
justice  of  the  peace,  tended  to  show  that  the  defendants, 
together  with  the  said  Dykes,  conspired  in  Henry  county,  Ala., 
to  go  to  the  house  of  Hudspeth,  who  lived  in  Georgia,  for  the 
purpose  of  robbing  him,  and  that  in  compliance  with  such  con- 
spiracy they  did  go  to  said  house,  but  for  certain  reasons  the 


THOMPSON  ET  AL.  v,  STATE. 


201 


rnhbory  was  not  committed,  and  that  Dykes  told  of  this  con- 
spiracy to  certain  other  persons.  The  testimony  of  the  persons 
to  whom  Dykes  told  this  conspiracy  tended  to  corroborate  the 
testimony  of  Dykes.  There  was  also  other  evidence  intro- 
duced on  the  trial  tending  to  show  that  the  defendants  were 
guilty  of  the  conspiracy  as  charged  in  the  indictment.  The 
testimony  of  W.  M.  Espy,  J.  R.  13aker,  Lonetta  Smith,  Frank 
Smith,  Mrs.  P.  A.  Thompson  and  Mrs.  Satcher,  witnesses  for 
the  defendants,  tended  to  establish  an  alibi  to  each  of  the 
defendants  by  showing  that  at  the  time  and  place  at  which 
Dykes  testified  the  defendants  were  when  the  conspiracy  was 
entered  into,  the  said  defendants  were  elsewhere,  the  testi- 
mony of  each  of  the  witnesses  specifying  the  particular  places 
at  which  the  defendants  were,  respectively.  Upon  the  intro- 
duction of  all  the  evidence,  the  court,  in  its  general  charge  to 
the  jury,  instructed  them,  among  other  things,  as  follows :  "  A 
doubt,  to  acquit  defendants,  or  either  of  them,  must  be  a  reason- 
able doubt — not  mere  speculation  or  possibility.  The  state  is 
not  required  to  prove  defendants'  guilt  beyond  all  doubt,  but  be- 
yond all  reasonable  doubt."  The  defendant  duly  excepted  to 
this  portion  of  the  court's  general  charge,  and  also  separately 
excepted  to  the  court's  refusal  to  give  each  of  the  following 
charges  recjuested  by  them :  (I)  *'  If  the  jury  believe  the  testi- 
mony of  W.  M.  Espy  and  J.  R.  Baker  as  to  the  whereabouts  of 
tlie  defendant  Napoleon  Thompson  at  the  time  of  the  alleged 
offense,  they  will  find  the  defendants  not  guilty  as  charged." 
(2)  "  The  time  and  place  of  the  alleged  offense  is  a  material 
inquiry  in  this  case,  after  the  alihi  is  set  up."  (3)  "  If  there 
was  an  agreement  entered  into  by  and  between  Hudspeth, 
Maund,  Holland,  and  Deal  to  have  the  defendants  come  to 
Hudspeth's  house  on  the  night  that  it  is  said  they  went,  and 
it  was  the  purjiose  of  Hudspeth  and  these  parties  to  entrap 
these  defendants,  then  there  could  not  be  a  robbery,  and  hence 
the  defendai  3  in  this  case  could  not  be  convicted."  (4)  "  The 
jury  should  consider  the  testimony  of  Bob  Dykes  with  extreme 
caution,  coming  to  them,  as  it  does,  by  witnesses  who  can't 
remember  all  his  testimony.  That  the  same  is  not  in  writing, 
and  the  recollection  of  the  witnesses  indistinct  as  to  a  great 
deal  of  his  testimony."  (5)  "  This  offense  is  charged  to 
liave  been  committed  in  Henry  county,  near  the  railroad, 
on  the  east  side  of  town,  on  the  Monday  or  Tuesday  evening 


I  i 


r  n 


F  P 


i. 


!     < 


r 


i.t  '  ■}' 


202 


AMERICAN  CRIMINAL  REPORTS. 


of  tie  week  of  tho  defendants'  arrest.  The  burden  is  on 
the  s.  ate,  and  they  must  convince  you  of  this  fact  to  a  moral 
certaii  t}-^,  or  you  should  acquit."  (6)  "If  the  jury  believe 
from  tiie  evidence  that  the  defendants  have  sustained  their 
plea  of  I'lihi  at  the  time  of  the  alleged  offense,  then  they  can 
not  be  gu'lty,  and  the  jury  should  acquit.  And  in  determining 
this  question  they  should  look  at  the  testimony  of  W.  M. 
Espy,  J.  R.  Baker,  Lonetta  Smith,  Frank  Smith,  Mrs.  P.  A. 
Thompson  and  Mrs,  Satcher."  (7)  "  If  the  jury  can  account 
for  defendant.^'  goinfj  to  Hudspeth's  house,  or  for  the  agree- 
ment under  which  tliey  went,  on  any  other  reasonable  hypoth- 
esis, other  than  the  guilt  of  the  defendants,  or  consistent 
with  their  innocence,  it  is  the  duty  of  the  jury  to  do  so,  and 
acquit  the  defendants."  (8)  "  If  the  state  lay  the  place  and 
time  of  the  conspiracy  at  or  near  the  railroad  on  the  east  side 
of  town,  and  on  Monday  or  Tuesday  evening,  between  one  and 
two  o'clock,  of  the  same  week  of  the  alleged  going  to  Huds- 
peth's house,  then  the  state  must  prove  it  by  evidence  sufficient 
to  satisfy  the  jury  beyond  all  reasonable  doubt,  or  tho  jury 
should  acquit."  (9)  "  Before  the  jury  can  convict,  they  must 
believe  the  testimony  of  Robert  Dykes,  that  they  entered  into 
the  conspiracy,  as  alleged,  on  Monday  or  Tuesday  evening,  and 
at  the  time  as  elected  by  the  state."  (10)  "If  the  jury  believe 
the  evidence,  they  will  find  tho  defendants  not  guilty." 


Ji.  II.  Walker,  for  appellants. 

Wm.  L.  Martin,  Attorney-General,  for  the  State. 

Brick?:ll,  C.  J.  The  indictment  contains  two  counts,  the 
first  charging  that  the  defendants  "  conspired  together  to  un- 
iawfuU}'  take  one  thousand  dollars  in  money,  the  property  of 
Julius  C.  Iludspath,  from  his  person,  and  against  his  will,  by 
violence  to  his  person,  or  by  putting  him  in  such  fear  as  un- 
willingly to  part  with  the  same."  The  second  count  charged 
that  the  defendants  "  unlawfully  conspired  togetlier  to  unlaw- 
fully, and  with  malice  aforethought,  kill  Julius  C.  Hudspeth." 
On  the  trial  the  state  voluntarily  elected  to  ])rosecute  only  for 
the  offense  charged  in  the  first  count,  thereby,  for  all  tho  pur- 
poses of  the  trial,  eliminating  the  second  count  as  effectually 
as  if  it  had  not  formed  part  of  the  indictment;  and  ii,  is  the 
sufficiency  of  the  first  covmt,  alone,  which  is  now  open  for  con- 


THOMPSON  ET  AL.  v.  STATE. 


203 


tiidoiiition.  The  offense,  the  commission  of  which  is  averred 
to  liiive  been  the  purpose  of  the  conspiracy,  is  described  in  the 
count  in  the  words  of  an  indictment  for  robbery,  as  prescribed 
by  tlie  Code  (Cr.  Code,  p.  276,  form  76);  and  in  other  respects 
the  count  is  in  close  analogy  to  the  form  prescribed  for  a  con- 
spiracy to  murder  (Id.,  p.  269,  form  29).  The  statute  prescrib- 
ins,'  forms  of  indictment  declares  that  the  forms  are  sufficient 
in  all  cases  to  which  they  are  applicable,  and  that  in  other 
cases  analogous  forms  may  be  used.  Id.,  §  4899.  The  demur- 
rers to  the  count  were  not  well  taken,  and  were  properly  over- 
ruled.    3  Brick.  Dig.,  pp.  279,  280,  §§  447-449. 

It  is  a  very  general  rule,  applicable  alike  in  civil  and  crimi- 
nal cases,  that  if  a  witness  has  given  testimony,  in  the  course 
ol  a  judicial  proceeding  between  the  parties  litigant,  before  a 
cctmpetent  tribunal,  and  subsequently  dies;  or,  if  not  dead, 
becomes  insane;  or,  after  diligent  search,  is  not  to  be  found 
within  the  jurisdiction  of  the  court;  or  if  that  which  is  equiv- 
alent be  shown,  that  he  has  left  the  state  permanently  or  for 
such  an  indefinite  time  that  his  return  is  contingent  and  un- 
certain— it  is  admissible  to  prove  the  substance  of  the  testi- 
mony he  gave  formerly.  1  AVIiart.  Ev.,  §§  177-180;  I  Greenl. 
Ev.,^.§  163-166;  1  Brick.  Dig.,  p.  878,  §§  1064-1072;  Brick.  Dig., 
p.  441,  §§  523-533;  Lowe  v.  State,  86  Ala.  47;  /South  v.  State^ 
86  Ala.  617;  Perry  v.  State,  87  Ala.  30;  Pniltt  v.  State,  92  Ala. 
41;  Lucas  v.  State,  96  Ala.  51.  The  rule  is  founded  upon  a 
principle  of  necessity,  rather  than  upon  any  ideas  of  mere  con- 
venience. Parties  should  not  lose  the  benefit  of  evidence  taken 
on  a  former  trial,  when  the  same  issues  were  involved,  and 
there  was  full  opportunity  of  examination  and  cross-exami- 
nation, because  events  or  contingencies  have  arisen  which 
render  the  personal  presence  of  the  witness  impossible,  or,  if 
possible,  his  examination  impracticable,  or  because  the  witness 
is  without  the  jurisdiction  of  the  court,  %nd  his  personal  pres- 
ence can  not  be  compelled.  The  rule  is,  however,  exceptional, 
and  it  is  essential  to  the  admissibility  of  the  evidence  that 
s(jme  one  of  the  contingencies  which  are  deemed  to  create  the 
necessity  be  satisfactorily  shown.  In  the  present  case  the 
fact  which  was  supposed  to  authorize  the  introduction  of  the 
evidence  given  by  the  witness  on  the  preliminary  examination 
before  the  justice  of  the  peace  was  his  absence  from  the  state 
at  the  time  of  the  trial.    The  evidence  was,  without  conflict, 


■i  f  11 


!    j 


J  Tl 


It/' 


204 


AMERICAN  CRIMINAL  REPORTS. 


that  tho  witness  was  a  minor,  and  his  home  was  with   liis 
father,  in  the  county  in  which  the  trial  was  had,  and  that 
when  he  left  home,  but  a  short  time  before  the  trial,  for  the 
State  of  Florida,  it  was  avowedly  for  a  mere  temporary  pur- 
pose, and  with  the  intent  of  returning  to  the  terra  of  the 
court  at  which  the  trial  was  had.     The  opposing  evidence  is 
that  of  a  witness  who,  two  days  before  the  trial,  saw  the  wit- 
ness in  Florida,  and  he  declared  that  he  had  a  job  of  work,  and 
i  ntended  to  remain,  and  was  not  coming  to  court.     The  reasona- 
ble hypothesis  theevidence  supports  is  not  that  the  witness  had 
permanently  abandoned,  or  intended  a  permanent  abandon- 
ment of  his  home  in  this  state;   that  his  absence  was  merely 
temporary.    Though  the  time  of  returning  is  not  shown  affirma- 
tively, it  is  not  shown  to  have  been  uncertain  and  contingent. 
There  was  no  duty  resting  upon  the  witness  to  return  to  that 
term  of  the  court,  or  to  be  present  at  the  trial  of  the  case.     He 
had  not  been  summoned,  nor  was  he  under  bond  for  appear- 
ance, so  far  as  it  is  shown,  nor  had  the  state  any  reason  to 
expect  his  appearance  or  presence.    We  are  not  of  opinion  that 
an  event  or  contingency  was   shown  which  authorized  the 
introduction  of  the  evidence  the  witness  had  given  on  the  pre- 
liminary examination  before  the  justice  of  the  peace.     AVe  deem 
it  proper  to  say  that  it  was  not  an  objection  to  the  admissi- 
bility of  the  evidence  that  the  justice  of  the  peace  had  not 
reduced  to  writing  the  examination  of  the  witness,  as  is  re- 
quired by  the  statute.    The  neglect  of  the  justice  to  perform 
this  duty  can  not  prejudice  the  parties,  nor  does  it  lessen  or 
add  to  the  tests  upon  which  the  admissibility  of  the  testimony 
depends.     Nor  was  the  evidence  inadmissible  because  the  mag- 
istrate could  not  and  did  not  assume  to  repeat  the  i)rocise 
words  of  the  witness.    All  that  was  essential  was  tliat  he 
should  remember  and  state  the  substance  of  what  the  Avitness 
had  testified  to  forinorly — the  substance  of  the  examination 
by  the  state,  and  of  the  cross-examination  by  the  defendants. 
Gildersleeve  v.  Carmoay,  10  Ala.  260;  Damis  v.  State,  .17  Ala. 
354.    We  may  remark  that  if,  on  a  succeeding  trial,  the  wit- 
ness should  be  absent,  and  the  introduction  of  his  evidence  on 
the  preliminary  examination  before  the  justice  is  deemed  ma- 
terial, its  admissibility  will  depend  on  the  state  of  facts  then 
existing. 
The  instruction  given  by  the  court  touching  a  reasonable 


THOMPSON  ET  AL.  v.  STATE. 


205 


doubt  which  requires  an  acquittal  of  a  criminal  charge  is  chmv 
and  precise,  and  in  accordance  with  all  authority.  Tlioui^h 
an  exception  was  reserved  to  it,  in  the  argument  of  counsel 
here  its  correctness  is  not  questioned.  Instructions  requested 
must  be  clear,  precise  statements  of  the  law  applicable  to  tht) 
evidence;  must  be  free  from  involvement  or  obscurity;  of  all 
tendency  to  mislead  or  confuse  the  jury;  must  not  be  invasive 
of  the  |)rovince  of  the  jury,  or  argumentative.  If  sul»ject  to 
any  one  of  these  objections,  there  is  no  revisable  error  in 
refusing  them. 

The  first  instruction  requested  by  the  defendants  not  only 
gives  undue  prominence  to  the  evidence  of  the  witnesses  who 
were  named  in  it,  but  was  invasive  of  the  province  of  the  jury 
to  consider  the  testimony  of  these  witnesses  in  connection  with 
all  the  evidence  which  had  been  introduced  toucliing  the  facts 
to  which  they  testified.  The  precise  meaning  or  i)urpose  of  the 
second  instruction  is  not  clear.  Time  and  place  are  material 
inquiries  on  every  criminal  trial.  The  burden  rests  on  tlio 
state  to  prove  that  the  offense  charged  was  comniitted  within 
the  county  in  which  the  venue  is  laid,  and  within  a  time  to 
avoid  the  bar  of  the  statute  of  limitations.  The  burden  is  not 
increased,  whatever  may  be  the  nature  or  ciiaracter  of  the 
defense.  It  is  not,  of  consequence,  true,  as  a  legal  proposition, 
as  tliis  instruction  asserts,  or  as  it  would  probably  liave  been 
by  the  jury  construed  to  assert,  that  time  and  place  became  a 
material  inquiry  only  when  an  alibi  was  interposed  as  a 
defense. 

The  third  instruction  is  founded  in  a  misconception  of  the 
offense  charged,  and  is  not,  in  any  of  its  postulates  of  fact, 
well  founded.  A  conspiracy  is,  in  and  of  itself,  a  distinct,  sub- 
stantive offense  —  complete  when  the  corrui)t  agrecMuent  is 
entered  into.  The  agreement  is  the  gist  of  the  olfenso.  It  is 
not  necessary  that  any  act  should  be  done  in  pursuance  of  the 
agreement,  nor  is  the  offense  purged  because  subsequcmt 
events  may  render  the  consummation  of  the  agreement  im- 
possible, or  because  the  conspirators  are  entrai)ped  into  an 
attempt  at  its  consummation. 

The  fourth  instruction  assumes  as  matter  of  fact  that  which 
it  was  the  province  of  the  jury  to  ascertain  and  determine — 
that,  to  employ  its  own  Avords,  the  recollection  of  the  wit- 
nesses as  to  the  testimony  given  by  Dykes  on  the  preliminary 


r'  m 


MLL 


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.iii 


20G 


AMERICAN  CRIMINAL  REPORTS. 


examination  before  the  justice  was  "  indistinct  as  to  a  great 
deal  of  his  testimony."  Besides,  in  form  and  expression,  the 
instruction  was  a  mere  argument. 

The  fifth,  eighth  and  ninth  instructions  may  be  considered 
together,  and  each  is  subject  to  the  kindred  objections.  The 
indictm^r*^  '' n.-ges  the  offense  to  have  been  committed  in 
Hem  <"  o<^  . .  nd  includes  the  charge  that  the  time  of  its  com- 
mission "^  >  :)'.:r.n  twelve  months  prior  to  its  finding.  These 
were  the  facts  tl^e  state  was  under  the  burden  of  proving. 
There  wis  no  burden  resting  upon  it  to  prove  that  the  con- 
spiracy was  foiified  at  the  time  or  place  stated  in  the  fifth 
and  eighth  instructions.  These  instructions  confound  the  al- 
legations of  the  indictment  with  the  evidence  which  the  state 
introduced.  They  are  wanting  in  clearness  and  precision, 
and  were  calculated  to  mislead  or  confuse  the  jury.  The 
ninth  affirms  tha*  the  state  had  elected  to  prosecute  on  the 
testimony  of  a  particular  witness,  and  of  such  election  the 
record  furnishes  no  evidence,  unless  it  be  inferred  from  the 
tendencies  of  the  evidence  the  state  introduced. 

The  sixth  instruction  is  subject  to  the  objection  that  it  gives 
undue  prominence  to  the  testimony  of  particular  witnesses. 

The  offense  charged  against  the  defendants  was  the  con- 
spiracy— not  any  act  done  or  attempted  in  its  consummation. 
Of  the  fact  of  the  conspiracy— of  the  corrupt  agreement— the 
evidence  must  have  satisfied  the  jury  beyond  a  reasonable 
doubt;  and  if  the  jury  could  reconcile  all  the  criminating  evi- 
dence on  a  reasonable  hypothesis  consistent  with  the  innocence 
of  the  defendants,  it  was  a  duty  to  adopt  that  hypothesis.  This 
is  far  from  being  the  proposition  asserted  in  the  seventh  in- 
struction, which  mingles  the  evidence  touching  the  going  to 
Hudspeth's  house  after  the  conspiracy  was  formed,  and  the  evi- 
dence of  the  conspiracy,  and  then,  in  the  alternative,  requires 
an  acquittal  if  the  jury  could  account  for  the  evidence  of  either 
on  a  reasonable  hypothesis  consistent  with  the  innocence  of 
the  defendants.  It  ma}'  be,  the  jury  could  account  for  the  fact 
that  the  defendants  went  to  Hudspeth's  house  on  some  reason- 
able hypothesis  consistent  with  their  innocence,  and  yet  be 
unable  to  reconcile  all  the  criminating  evidence  touching  the 
conspiracy  on  any  reasonable  hypothesis  consistent  with  inno- 
cence. Yet,  framed  as  the  instruction  is,  in  that  event  the  jury 
would  have  been  under  the  duty  of  acquittal.    The  only  im- 


THOMPSON  ET  AL.  v.  STATE. 


207 


portiince  of  the  fact  that  the  defenilants  went  to  Hudspeth's 
house  lies  in  its  tendency  to  corroborate  the  evidence  of  the 
conspiracy.  There  is  no  aspect  in  which  the  instruction  can 
be  considered  as  correct,  and  it  was  properly  refused. 

It  is  insisted  that  the  tenth  instruction  ought  to  have  been 
given,  because  there  is  an  absence  of  evidence  to  support  the 
averment  of  the  indictment  that  the  object  or  purpose  of  the 
conspiracy  was  to  rob  Hudspeth  of  $1,000.  An  indictment  for 
a  conspiracy  to  do  an  act  whicli  is  a  Avell-known  felony  or  mis- 
demeanor at  common  law  is  sufficient  if  it  describes  or  avers  in 
general  terms  the  felony  or  misdemeanor  intended  to  be  com- 
mitted. The  nature  of  the  offense,  by  such  averment  or  de- 
scription, is  clearly  indicated,  and  all  beyond  is  mere  matter  of 
evidence  or  surplusage.  1  Bish.  Cr.  Proc,  §  516;  4  Am,  &  Eng. 
Law,  623;  3  Greenl.  Ev,,  §  305;  Com.  v.  Eastman,  1  Cush.  189. 
It  was  immaterial  whether  the  purpose  of  the  conspiracy  was 
to  rob  Hudspeth  of  $1  or  of  $1,000.  The  degree  of  the  guilt 
of  the  accused  was  not  lessened  or  increased  because  of  the 
insignificance  or  the  magnitude  of  the  value  of  that  which  it 
was  intended  to  acquire  by  the  robbery;  and  if  this  were  an 
indictment  for  robbery,  it  would  not  be  necessary  to  prove  the 
precise  sum  averred  to  have  been  taken  from  the  person  of  the 
party  robbed.  3  Greenl.  Ev.  §  224;  1  Bish.  Cr.  Proc,  §  579. 
The  averment  of  the  indictment,  in  the  particular  we  are  con- 
sidering, belongs  to  that  class  of  averments  which  are  not  de- 
scriptive of  the  fact  or  character  of  the  offense,  and  are  not 
required  to  be  proven  with  any  degree  of  precision.  1  Greenl. 
Ev.,  §  65;  1  Bish.  Cr.  Proc,  §  579. 

We  are  without  a  statute  declaring  a  conspiracy  formed  in 
tliis  state  to  commit  a  felony  or  a  misdemeanor  in  a  sister  state 
an  indictable  offense,  as  we  are  without  a  statutory  declaration 
of  the  elements  or  constituents  of  a  criminal  conspiracy.  The 
Criminal  Code  declares  the  punishment  to  be  inflicted  for  the 
offense  of  a  conspiracy  to  commit  a  felony  or  a  misdemeanor, 
and,  it  may  be,  refers  exclusively  to  a  conspiracy  in  this  state 
to  commit  within  the  state  a  felony  or  misdemeanor,  as  the 
Code  defines  these  offenses.  But  the  doctrine  has  long  been 
established,  in  civil  and  criminal  cases,  that  the  common  law, 
so  far  as  adapted  to  our  condition,  consistent  with  our  institu- 
tions, and  unaffected  by  legislation,  prevails  here.  1  Brick. 
Dig.,  p.  349,  §§  1-12.    In  Pierson  v.  State,  12  Ala.  149,  it  was 


4'  -■i-^ 


i>.-^  i 


-('  i 


11  m 


5  1  ■ ; 


f  ■■  i: 


208 


AMERICAN  CRIMINAL  REPORTS. 


held  that  the  common  law  of  this  state  on  the  subject  of  homi- 
cide is  derived  from,  and  the  same  as,  the  common  law  ol 
England,  The  criminating  element  and  constituent  of  an  in- 
dictal>le  conspiracy  is  the  vicious,  unlawful  combination— the 
corrupt  and  corrupting  agreement;  and  wherever  the  common 
law  prevails,  if  the  combination  is  formed,  and  the  agreement 
entered  into,  to  commit  a  known  felony,  maltwi  in  se,  the 
offense  is  complete.  There  needs  no  overt  act— no  effort  at 
consummation.  The  combination  and  agreement  are  of  the 
essence,  the  gist  of  the  offense;  and  as  a  distinct,  substantive 
offense,  it  is  then  committed.  The  place  at  which  it  is  in- 
tended to  commit  the  felony  is  not  material.  It  is  the  law  of  the 
place  where  the  conspiracy  is  formed  Avhich  is  broken.  A  con- 
spiracy, at  common  law,  is  a  misdemeanor;  and  the  Code  pro- 
vides the  punishment  which  is  to  be  inflicted  on  conviction  of 
a  misdemeanor,  at  common  law,  the  punishment  of  which  is 
not  otherwise  particularly  specified.  It  is  apparent  from  our 
legislation,  and  its  history,  tliat  the  legislative  intent  is  to  pre- 
serve, not  to  impair  or  abrogate,  the  common  law,  so  far  as  it 
may  relate  to  civil  rights  or  to  crimes,  is  adapted  to  our  con- 
dition, and  not  inconsistent  with  our  institutions,  except  in  so 
far  as  it  is  superseded  by  express  or  repugnant  legislation. 
Considering  ar.d  expressing  an  opinion  only  on  the  precise 
question  the  record  presents,  we  have  no  hesitancy  in  declaring 
that  it  is  an  indictable  common-law  misdemeanor  to  enter  into 
a  conspiracy  in  this  state  to  commit  a  known  common-law 
felony,  malum  in  se,  in  a  sister  state.  1  Russ.  Crimes,  967;  1 
Whart.  Cr.  Law  (9th  Ed.),  §  287;  1  Bish.  Cr.  Law  (7th  Ed.), 
§111;  State  v.  Chapin,  17  Ark.  501;  Fx  parte  liogers,  10  Tex. 
App.  655;  Johns  v.  State,  19  Ind.  421.  For  the  error  pointed 
out  the  judgment  must  be  reversed,  and  the  cause  remanded. 
The  defendants  will  remain  in  custody  until  discharged  by 
due  course  of  law. 

Note. — Conspiracy  to  do  that  in  which  all  must  participate. — In  State 
(Madden  et  al.,  prosecutors)  v.  State,  57  N.  J.  L.  — ,  a  case  where  members 
of  a  municipal  board  were  indicted  for  conspiring  to  cheat  a  city  of  its 
moneys  by  corruptly  purchasing  supplies  for  the  city  at  excessive  prices  and 
by  paying  salaries  to  persons  rendering  no  services,  the  court,  in  response  to 
the  contention  that  the  indictment  charges  a  conspiracy  to  commit  n  crime 
which  could  only  be  perpetrated  by  the  joint  action  of  the  del- iidants, 
that  the  means  by  which  the  cheat  wafl  to  be  accomplished  involved  the 
official  conduct  of  the  defendants,  acting  as  a  board,  and  so  required  the 


THOMPSON  V.  UNITED  STATES. 


209 


combinoil  vote  of  the  defendants  to  effectuate  the  design,  and  hence  is  not 
sutticient  to  warrant  tiie  conviction  of  individual  members  of  the  lioard, 
said:  "  Tliis  conspiracy  charged  is  compared  with  an  agreement  between 
two  persons  to  commit  bigamy  or  adultery,  for  a  conspiracy  to  commit 
vvhicli,  it  is  claimed  the  parties  can  not  be  indicted,  because  the  offense  itself, 
wliicli,  by  the  agreement,  is  to  be  committed,  involves  the  concerted  action 
of  all  the  parties.  It  is  not  deemed  useful  to  examine  the  legal  proposition 
involved  in  the  last  sentence.  Its  limitations  are  the  subject  of  remark 
by  Mr.  Bishop  in  his  work  on  Criminal  Law  (volume  2,  §  184,  and  note). 
The  legal  proposition  is  not  applicable  to  the  facts  here  presented.  It  is 
first  to  be  observed  that  the  agreement  is  not  to  do  an  act  requiring  the  vote 
of  each  defendant  in  favor  of  the  cheat.  Only  a  majority  of  votes  were 
essential.  An  agreement,  entered  into  between  all,  that  certain  members, 
in  numbers  sufficient  to  constitute  a  majority,  should  vote  to  carry  out  the 
project,  would  be  consistent  with  the  charges  in  the  bill.  But,  entirely 
aside  from  this  consideration,  it  is  clear  that  the  legal  rule  invoked  is  inap- 
plicable; for,  assuming  that  the  execution  of  the  agreement  involved  an  in- 
dictable malfeasance  in  office,  yet  each  of  the  defendants  who  participated 
in  the  act  was  punishable  severally.  Indeed,  I  do  not  perceive  that  this  con- 
spiracy stands  upon  any  different  footing  from  any  other  combination  to 
execute  a  criminal  or  illegal  act,  by  the  power  derived  from  an  aggregation 
of  individual  acta." 


Thompson  v.  United  States. 

(135  U.  S.  271.) 

CoNSTmJTiONAl,  Law:    Jeopardy— Poveer  of  court  to  disclmrge  jury  in 
criminal  case — Practice — Self-defense — Murder — Manslaughter . 

1.  Courts  of  justice  are  invested  with  authority  to  discharge  a  jury  from 

giving  any  verdict,  whenever,  in  their  opinion,  taking  all  the  circum- 
stances into  consideration,  there  is  a  manifest  necessity  for  the  act,  or 
the  ends  of  public  justice  would  otherwise  be  defeated,  and  to  order  a 
trial  by  another  jury,  and  a  defendant  is  not  thereby  twice  put  in  jeop- 
ardy, within  the  meaning  of  the  Fifth  Amendment  to  the  Constitution 
of  the  United  States. 

2.  Sundry  errors  in  the  charge  of   the  court  below  commented  on,  and 

Oourko  V.  United  States,  153  U.  S.  183,  approved  and  applied  to  the 
issues  in  this  case,  viz.:  (1)  A  person  who  has  an  angry  altercation 
with  another  person,  such  as  to  lead  him  to  believe  that  he  may  require 
the  means  of  self-defense  in  case  of  another  encounter,  may  be  justified 
in  the  eye  of  the  law,  in  arming  himself  for  self-defense;  and  if,  on 
meeting  his  adversary  on  a  subsequent  occasion,  he  kills  him,  but  not 
in  necessary  self-defense,  his  crime  may  be  that  of  manslaughter  or 
murder,  as  the  circumstancr^  on  the  occasion  of  the  killing  make  it  the 
one  or  the  other.  (2)  If,  looking  alone  at  those  circumstances,  his 
crime  be  that  of  manslaughter,  it  is  not  converted  into  murder  by  rea- 
son of  his  having  previously  armed  himself. 
14 


A^r.'l   1 


m 


!    Ji  .'li 


i  ■  ■■    }, 


''r.. 


210 


AMEKICAN  CRIMINAL  REPORTS. 


Error  to  the  Circuit  Court  of  the  United  States  for  the 
Western  District  of  Arkansas. 

No.  G37.  Submitted  October  18, 1894.  Decided  Decemlx>r 
3,  1894. 

In  the  District  Court  of  the  United  States  for  the  Western 
District  of  Arkansas,  on  November  23, 1893,  a  jury  was  sworn 
to  try  the  issue  formed  between  the  United  States  and  Thomas 
Thompson  under  an  indictment  wherein  said  Thompson  was 
charged  wiih  the  murder  of  one  Charles  Hermes,  and  to  whicli 
the  accused  pleaded  not  guilty. 

After  the  case  had  been  opened  by  counsel  for  the  govern- 
ment and  the  defendant  respectively,  and  after  Jacob  liermes, 
a  witness  for  the  government,  had  been  called  and  examined  in 
chief,  the  judge  stated  that  it  had  come  to  his  knowledge  that 
one  of  the  jurors  was  disqualified  to  sit  on  account  of  havinj,^ 
been  a  member  of  the  grand  jury  that  returned  the  indict- 
ment in  the  case.  The  defendant,  by  his  counsel,  objected  to 
proceeding  further  in  the  trial  of  the  case  with  the  said  juror 
on  account  of  his  incompetency  as  aforesaid.  Whereupon 
the  court  ordered  the  discharge  of  the  jury  and  that  another 
jury  be  called,  to  which  action  of  the  court  the  defendant,  by 
his  counsel,  at  the  time  excepted. 

On  November  27, 1893,  the  defendant  filed  a  plea  of  former 
jeopardy,  and  also  a  motion  for  a  jury  from  the  body  of  the 
district;  and  it  appearing  from  an  examination,  in  the  presence 
of  the  defendant,  that  a  number  of  the  regular  panel  of  jurors 
were  disqualified  because  of  opinions  formed  after  having 
heard  part  of  the  evidence,  the  court  ordered  the  marshal  to 
summon  from  the  bystanders  twenty-eight  legal  voters  of  the 
Western  District  of  Arkansas,  to  be  used  as  talesman  in  mak- 
ing up  a  jury  for  the  trial  of  the  case.  On  December  1st,  a 
motion  was  filed  on  behalf  of  the  defendant,  to  quash  that 
part  of  the  panel  of  jurors  consisting  of  twenty-eight  men 
summoned  from  bystanders,  which  motion  was  overruled,  and 
the  petition  of  the  defendant  asking  for  a  jury  from  the  body 
of  the  district,  drawn  in  the  regular  manner  from  the  jury- 
box  by  the  jury  commissioners,  was  refused.  The  govern- 
ment's attorney  then  moved  that  a  jury  be  called  for  the  trial. 
The  defendant  objected  to  the  twelve  men  being  called  who 
had  been  theretofore  impaneled  for  the  trial  of   the  cause, 


THOMPSON  V.  UNITED  STATES. 


211 


which  objection  the  court  sustained,  anJ  the  clerlv  was  ordered 
to  omit  the  names  of  said  jurors. 

Among  tlie  jurors  called  were  Wilson  G.  Gray,  William  M. 
Perkins  and  Isaac  B.  Sloan,  w^ho  were  members  of  the  regular 
panel  for  the  present  term  of  the  court,  and  whose  names 
were  on  the  list  of  jurors  served  upon  defendant  at  the  begin- 
ninjr  of  the  term,  and  before  the  first  jury  in  this  cause  was 
impaneled  these  three  jurors  were,  by  the  defendant,  pereni]> 
torily  challenged.  Their  names  were  not  upon  the  certifie<l 
list  of  jurors  last  served  upon  the  defendant  after  the  first  jury 
had  been  discharged.  The  challenge  for  cause  made  by  de- 
fendant to  these  three  jurors  was  overruled,  whereupon  the 
defendant  peremptorily  challenged  them.  The  defendant 
likewise  filed  a  written  challenge  for  cause  to  the  twenty-eight 
men  called  as  talesmen  for  the  reasons  that  they  did  not  belong 
to  the  regular  panel  of  jurors,  that  they  were  not  from  the 
body  of  the  district,  but  were  all  residents  of  the  city  of  Fort 
Smith,  in  the  immediate  neighborhood  of  the  place  of  trial. 
This  -hallenge  was  overruled. 

The  jury  was  thereupon  sworn,  and  the  trial  proceeded  with, 
resulting  in  a  verdict,  under  the  instructions  of  the  court,  for 
the  government,  in  the  issue  formed  by  the  plea  of  former 
jeopardy;  and  in  a  verdict  that  the  defendant  was  guilty  of 
murder  as  charged  in  the  indictment. 

Motions  for  a  new  trial  and  in  arrest  of  judgment  were 
overruled,  and  sentence  of  death  was  pronounced  against  the 
defendant. 

Upon  errors  alleged  in  the  proceedings  of  the  court,  and  in 
the  charge  to  the  jury,  a  writ  of  error  was  sued  out  to  this 
court. 


<  I 


3fr.  A.  IT.  Garland^  for  plaintiff  in  error. 
Mr.  Assistant  Attorney-General  Whitney,  for  defendants  in 
error. 

]Mr.  Justice  Shiras,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  record  discloses  that,  while  the  trial  was  proceeding,  a 
jury  having  been  sworn  and  a  witness  examined,  the  fact  that 
one  of  the  jury  was  disqualified,  by  having  been  a  member  of 
the  grand  jury  that  found  the  indictment,  became  known  to 
the  court.    Thereupon  the  court,  without  the  consent  of  the 


sfh: 


■S^  !. 


tl 


1 


'','!'  > 


■'*'. 


212 


AMERICAN  CRIMINAL  REPORTS. 


defendant,  and  under  excei)tion,  discharged  the  jury,  and 
directed  tliat  another  jury  siiould  be  called.  Tlio  defenihmt. 
by  his  counsel,  pleaded  that  he  liad  been  once  in  jeopardy  upon 
and  lor  the  same  charge  and  offense  for  which  ho  now  stood 
charged.  The  court  jjerniitted  this  plea  to  bo  llled,  and  sub- 
mitted the  question  to  the  jury,  with  instructions  to  find  the 
issue  in  favor  of  the  government.  Such  a  verdict  was  accord 
ingly  rendered,  and  the  cause  was  then  disposed  of  under  the 
plea  of  not  guilty,  and  resulted  in  a  verdict  of  guilty  under  the 
indictment. 

The  defendant  now  seeks,  in  one  of  his  assignments  of  errors, 
the  benefit  of  the  constitutional  provision  that  no  person  shall 
be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy  of 
life  and  limb. 

As  the  matter  of  the  plea  puis  darrein  continuance,  setting 
out  the  previous  discharge  of  a  jury  after  having  been  sworn, 
and  the  plea  of  not  guilty,  were  not  inconsistent  with  each 
other,  it  accorded  with  the  rules  of  criminal  pleading  that  they 
might  stand  together,  though,  of  course,  it  was  necessary  that 
the  issue  under  the  first  plea  should  be  disposed  of  before  the 
cause  was  disposed  of  under  the  plea  of  not  guilty.  Common- 
wealth V,  Ilerrilly  8  Allen,  545;  1  Bishop  on  Criminal  Proced- 
ure, Section  752. 

As  to  the  question  raised  by  the  plea  of  former  jeopardy,  it 
is  sufficiently  answered  by  citing  United  States  v.  Perez,  \) 
"Wheat.  579;  Simmons  v.  United  States,  142  U.  S.  148,  and 
Loyan  v.  United  States,  144  U.  S.  263.  Those  cases  clearly 
establish  the  law  of  this  court,  that  courts  of  justice  are  in- 
vested with  the  authority  to  discharge  a  jury  from  giving 
any  verdict,  whenever  in  their  opinion,  taking  all  the  circum- 
stances into  consideration,  there  is  a  manifest  necessity  for  the 
act,  or  the  ends  of  public  justice  would  otherwise  be  defeated, 
and  to  order  a  trial  by  another  jury;  and  that  the  defendant 
is  not  thereby  twice  put  in  jeopardy  within  the  meaning  of  the 
Fifth  Amendment  to  the  Constitution  of  the  United  States. 

The  evidence  in  the  case  substantially  disclosed  the  follow- 
ing facts:  The  defendant,  Thompson,  was  an  Indian  boy 
about  seventeen  years  of  age,  and  lived  with  Sara  Haynes, 
a  Creek  Indian,  who  had  a  farm  near  Okmulgeti  in  the  Creek 
Nation.  The  deceased,  Charles  Hermes,  lived  with  his  father 
on  land  rented  from  Haynes,  and  distant  about  a  mile  from 


I 


I 


TIIOMrSON  V.  UNITED  STATEa 


213 


the  lioiiso  of  the  latter.  There  was  toatiinony  tending  to 
show  ill  fooling  on  the  part  of  Ilormos  and  his  sons  toward 
this  Indian  boy,  and  that  they  had  threatened  to  injnro  him 
if  ho  came  about  where  they  were.  Thompson  could  not 
snoal'  or  understand  the  English  language,  but  ho  had  been 
told  by  Ilfiynes  and  another  witness  that  old  man  Hermes  had 
claimed  that  he,  Thompson,  had  been  abusing  and  killing  his 
lioo;s,  and  that  if  ho  "  came  acting  the  monkey  anjund  him  any 
more  he  would  chop  his  head  off." 

In  the  afternoon  of  Juno  8,  1893,  Mrs.  Ilaynes  directed  the 
boy  to  take  a  bundle  to  Mrs.  Checotah's,  who  lived  two  or 
three  miles  away.  The  boy  caught  a  horse,  got  on  it  without 
a  saddle,  took  the  bundle  that  Mrs.  Ilaynes  gave  him  and  went 
off  on  his  errand.  Mrs.  Ilaynes  testified  that  he  had  no  arms 
of  any  kind  when  he  left  her  house,  and  that  he  appeared  in 
good  humor  with  everybody  at  that  time.  The  road  to  Che- 
cotah's ran  bv  a  field  where  the  deceased,  his  father  and  brother 
were  working,  ploughing  corn.  There  was  testimony,  on  the 
l)art  of  Thompson,  tending  to  show  that,  as  he  rode  along  past 
the  field,  the  old  man  and  the  deceased  began  quarreling  with 
him;  that  Thompson  saw  that  they  were  angry  with  him,  but 
could  not  understand  much  that  was  said  to  him,  although  he 
could  tell  that  they  were  talking  about  hogs.  Thompson  says 
that  he  remembered  the  threats  against  him  they  had  made  to 
Ilaynes  and  Checotah,  and  thought  they  were  going  to  hurt 
him.  He  further  states  that  he  ro<le  on  to  Checotah's,  where 
he  left  the  bundle;  that  he  got  to  thinking  about  what  Sam 
Ilaynes  had  told  him  as  to  the  threats  that  Ilermes  had  made, 
and  as  there  was  no  other  road  for  him  to  return  home  by, 
except  the  one  alongside  of  the  field,  he  thought  it  was  best 
for  him  to  arm  himself,  so  that  he  could  make  a  defense  in  case 
he  was  attacked;  that  he  went  by  Amos  Gray's  house,  and 
there  armed  himself  with  a  Winchester  rifle  belonging  to  Gray. 
The  defendant  further  testified  that  after  he  got  the  gun  he 
went  back  to  the  road,  and  as  he  got  opjiosite  where  the 
men  were  ploughing,  the  boys  were  near  the  fence,  and  the  old 
man  was  behind;  that  the  boys  called  at  him  and  said  some- 
thing about  a  gun,  and  the  deceased  started  toward  a  gun  that 
was  standing  in  the  corner  of  the  fence,  and  that,  thinking 
they  intended  to  kill  him,  he  drew  his  gun  and  fired  at  the 
deceased,  and  then  ran  away  on  his  horse,  pursued  by  the  old 


mil 


% 


1  ■ '  ■  ■  ■ 


IM 


214 


AMERICAN  CRIMINAL  REPORTS. 


man,  who  afterward  shot  at  him.  These  particulars  of  tlie 
ti-ansaction  were  principally  testified  to  by  Thompson  himself, 
but  he  was  corroborated,  to  some  extent,  by  William  Baxter 
and  James  Gregory,  who  testified  that  they  visited  the  field 
where  the  body  of  the  deceased  was,  and  that  Hermes,  the 
father,  describad  the  affair  to  them,  and,  as  so  told,  the  facts 
differed  but  little  from  Thompson's  version. 

In  this  state  of  facts,  or,  at  all  events,  with  evidence  tend- 
ing to  show  such,  the  court  instructed  the  jury  at  great  length 
in  respect  to  the  law  of  the  case.  Exception  was  taken  to  the 
charge  of  the  court  as  a  whole,  because  it  was  "  prolix,  confus- 
ing, abstract,  argumentative  and  misleading,"  and  this  excep- 
tion is  the  subject  of  one  of  the  assignments  of  error.  But  wo 
do  not  need  to  consider  this  asi)ect  of  the  case,  as  the  record 
discloses  errors  in  vital  portions  of  the  charge,  and  specifically 
excei)ted  to,  which  constrain  us  to  reverse  the  judgment,  and 
direct  a  new  trial. 

In  instructing  the  jury  as  to  the  right  of  self-defense,  the 
learned  judge  said :  "  It  is  for  you  to  say  whether  at  the  time 
of  the  killing  of  Charles  Hermes  by  this  defendant  that  this 
defendant  was  doing  what  he  had  a  right  to  do.  If  he  was 
not,  notwithstanding  Charles  Hermes  might  have  made  a  vio- 
lent demonstration  that  was  then  and  there  imminent,  then  and 
there  impending,  then  and  there  hanging  over  his  head,  and 
that  he  could  not  avoid  it  except  by  killing  him;  if  his  con- 
duct wrongfully,  illegally,  and  improperly  brought  into  exist- 
ence that  condition,  then  he  was  not  in  an  attitude,  where,  in 
the  language  of  the  law,  he  was  in  the  lawful  pursuit  of  his 
business."  And  again  :  "  Now,  in  this  connection,  we  have  a 
maxim  of  the  law  which  says  to  us  that  notwithstanding  the 
deceased  at  the  time  of  the  killing  may  be  doing  that  which 
indicates  an  actual,  real,  and  deadly  design,  if  he  by  his  action 
who  seeks  to  invoke  the  right  of  self-defense  brought  into  ex- 
ist? nee  that  act  upon  the  part  of  the  deceased  at  that  time  by 
his  wrongful  act,  his  wrongful  action  did  it,  he  is  cut  off  from 
the  law  of  self-defense,  no  matter  what  may  have  been  the 
conduct  of  the  deceased  at  that  time." 

It  is  not  easy  to  understand  what  the  learned  judge  meant  by 
those  portions  of  these  instructions,  in  which  he  leaves  it  to 
the  jury  to  say  whether  the  defendant  was  "  doing  what  he 
had  a  right  to  do,"  and  whether  the  defendant  brought  into 


i 


the 
ielf, 
ctei- 
icld 
the 

LCtS 


tlie 
us- 
cep- 

'•  We 


THOMPSON  V.  UNITED  STATES. 


215 


existence  the  act  of  the  deceased,  in  threatening  to  attack  the 
defendant,  "by  his,  defendant's,  wrongful  act."  Probably 
what  was  here  adverted  to  was  the  conduct  of  the  deceased  in 
returning  home  by  the  same  route  in  which  he  had  passed  the 
accused  when  going  to  Checotah's,  and  the  implication  seems 
to  be  that  the  accused  was  doing  wrong  and  was  guilty  of  a 
wrongful  act  in  so  doing.  The  only  evidence  on  tliat  subject 
was  that  of  the  defendant  himself,  that  he  had  no  other  mode 
of  returning  home  except  by  that  road,  because  of  swamps  on 
the  other  side  of  the  road,  and  there  was  no  evidence  to  the 
contrary. 

Tlie  learned  judge,  in  these  and  subsequent  instructions, 
seems  to  confuse  the  conduct  of  the  defendant  in  returning 
home  by  the  only  convenient  road,  with  a  supposed  return  to 
the  scene  of  a  previous  quarrel  for  the  purpose  of  renewing  it. 
Thus,  he  further  instructed  the  jury  that  "  if  it  be  true  tiiat 
Charles  Hermes,  at  the  time  of  the  killing,  was  actually  and 
really,  or  apparently,  in  the  act  of  executing  a  deadly  design, 
or  so  near  in  the  execution  of  it  that  the  defendant  could  not 
avoid  it,  and  that  it  was  brought  into  existence  by  his  going  to 
that  place  where  Charles  Hermes  was,  with  the  purpose  of  pro- 
voking a  difficulty,  or  with  the  intention  of  having  an  affray, 
he  is  cut  off  from  the  law  of  self-defense."  And  again: 
"  You  are  to  look  to  the  evidence  to  see  whether  the  defendant 
brought  that  state  of  case  into  existence,  to  see  whether  or  not 
in  consequence  of  a  conception  on  his  part  of  a  state  of  grudge, 
or  ill-will,  or  any  hard  feeling  that  existed  between  the  par- 
ties; that  he  went  off  and  armed  himself  for  the  purpose  of 
making  an  attack  on  Hermes,  or  any  of  the  party  whom  the 
government  offered  as  witnesses,  this  law  of  self-defense 
can  not  avail  him.  Of  course,  the  law  of  self-defense  gives 
him  the  right  to  arm  himself  for  the  purpose  of  defend- 
ing himself  so  long  as  he  is  in  the  right,  but  if  he  has  a  con- 
ception that  deadly  danger  may  come  upon  him,  but  he  is  away 
from  it  so  he  can  avoid  it,  his  duty  is  to  stay  away 
from  it  and  avoid  it,  because  he  has  no  right  to  go 
to  the  place  where  the  fiiain  person  is,  with  a  deadly  weapon, 
for  t,he  purpose  of  provoking  a  difficulty,  or  with  the  intent  of 
having  an  affray." 

These  instructions  could,  and  naturally  would,  be  understood 
by  the  jury  as  directing  them  that  the  accused  lost  his  right  of 


w 


216 


AMERICAN  CRIMINAL  REPORTS. 


; 


l1       I 


,  1 


self-defense  by  returning  home  by  the  road  that  passed  by  tlie 
place  where  the  accused  was,  and  that  they  should  lind  that 
the  fact  that  he  had  armed  himself  and  returned  by  that  road 
was  evidence  from  which  they  should  infer  that  he  had  gone 
off  and  armed  himself  and  returned  for  the  purpose  of  provok- 
ing a  diificulty.  Certainly  the  mere  fact  that  the  accused  used 
the  same  road  in  returning  that  he  had  used  in  going  from 
home  would  not  warrant  the  inference  that  his  return  was  with 
the  purpose  of  provoking  an  affray,  particularly  as  there  was 
evidence  that  this  road  was  the  proper  and  convenient  one. 
Nor  did  the  fact  that  the  defendant,  in  view  of  the  threats 
that  had  been  made  against  him,  armed  himself,  justify  the  jury 
in  inferring  that  this  was  with  the  purpose  of  attacking  the 
deceased  and  not  of  defending  himself,  especially  iu  view 
of  the  testimony  that  the  purpose  of  the  defendant  in  arming 
himself  was  for  self-defense. 

We  had  occasion  to  correct  a  similar  error  in  the  recent  case 
of  Gourko  V.  United  States,  153  U.  S.  183.  That  was  a  case 
where  the  deceased  had  previously  uttered  threats  against 
the  defendant,  and  there  had  been  a  recent  rencontre  at  the 
postoffice.  The  parties  then  separated,  and  the  defendant 
armed  himself,  and  subsequently,  when  the  parties  again  en- 
countered each  other,  the  defendant  shot  and  killed  the  de- 
ceased. The  court  instructed  the  jury  that  in  those  circum- 
stances there  was  no  right  of  self-defense,  and  that  there  was 
nothing  to  reduce  the  offense  from  that  of  murder  to  man- 
slaughter. 

In  discussing  the  question  this  court,  by  Mr.  Justice  Ilarlan, 
said: 

"  Assuming,  for  the  purposes  of  the  present  inquiry,  that 
the  defendant  was  not  entitled  to  an  acquittal  as  having  acted 
in  self-defense,  the  vital  question  was  as  to  the  effect  to  be 
given  to  the  fact  that  he  armed  himself  with  a  deadly  weapon 
after  the  angry  meeting  with  Carbo  in  the  vicinity  of  the  post- 
office.  If  he  had  armed  himself  for  the  purpose  of  j)ursuing 
his  adversary,  or  with  the  intention  of  putting  himself  in  the 
way  of  his  adversary,  so  as  to  obtain  an  opportunity  to  kill 
him,  then  he  was  guilty  of  murder.  But,  if  in  view  of  what 
had  occurred  near  the  postolfice,  the  defendant  had  reasonable 
ground  to  believe,  and  in  fact  believed,  that  the  deceased  in- 
tended to  take  his  life,  or  to  inflict  upon  him  great  bodily  harm, 


THOMPSON  V.  UNITED  STATES. 


217 


and  so  believing  armed  himself  solely  for  necessary  self-defense 
in  the  event  of  his  being  pursued  and  attacked,  and  if  the  cir- 
cumstances on  the  occasion  of  the  meeting  at  or  near  the 
saloon  were  such  as,  by  themselves,  made  a  case  of  man- 
slaughter, then  the  defendant  arming  himself,  after  the  diffi- 
culty near  the  postoffice,  did  not,  in  itself,  have  the  effect  to 
convert  his  crime  into  that  of  murder. 

"  Stated  in  another  form :  Although  the  defendant  may  not 
have  been  justified  on  the  occasion  and  in  the  particular  cir- 
cumstances of  the  difficulty  at  the  billiard  saloon  in  believing 
that  tlie  taking  of  his  adversary's  life  was,  then  and  there, 
necessary  to  save  his  own  life  or  to  protect  himself  from  seri- 
ous bodily  harm,  nevertheless  the  jury  were  not  authorized  to 
find  him  guilty  of  murder  because  of  his  having  deliberately 
armed  himself,  provided  he  rightfully  armed  himself  for  pur- 
jx)sos  simply  of  self-defense,  and  if,  independently  of  the  fact 
of  arming  himself,  the  case,  tested  by  what  occurred  on 
the  occasion  of  the  killing,  was  one  of  manslaughter  only. 
The  court,  in  effect,  said,  or  the  jury  may  not  unreasonably 
have  understood  the  judge  as  declaring,  that  preparation  by 
arming,  although  for  self-defense  only,  could  not  be  followed, 
in  any  case,  by  manslaughter,  if  the  killing,  after  such  arm- 
ing, was  not  in  fact  in  necessary  self-defense.  Such  we  under- 
derstand  to  be  the  meaning  of  the  charge.  In  our  opinion 
the  court  erred  in  so  charging  the  jury.  If  the  accused  was 
justified  in  the  eye  of  the  law  in  arming  himself  for  self- 
defense,  and  if,  without  seeking,  but  on  meeting  his  adversary, 
on  a  subsequent  occasion,  he  killed  him,  not  in  necessary  self- 
defense,  then  his  crime  was  that  of  manslaughter  or  murder, 
as  the  circumstances,  on  the  occasion  of  the  killing,  made  it 
the  one  or  the  other.  If  guilty  of  manslaughter,  looking 
alone  at  those  circumstances,  he  could  not  be  found  guilty  of 
murder  by  reason  of  his  having  previously  armed  himself 
solely  for  self-defense." 

Wo  think  that  there  was  also  error  in  that  portion  of  the 
charge  wherein  the  court  instructed  the  jury  as  to  the  effect 
which  they  should  give  to  the  evidence  on  the  subject  of 
previous  threats  uttered  against  the  defendant  by  Hermes 
and  his  sons.  The  learned  judge  seems  to  have  regarded 
such  evidence  not  merely  as  not  extenuating  or  excusing  the 
act  of  the  defendant,  but  as  evidence  from  which  the  jury 


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218 


AMERICAN  CRIMINAL  REPORTS. 


might  infer  special  spito,  special  ill-will,  on  the  part  of  tlio 
defendant.    The  language  of  the  learned  judge  was  as  follows : 

"  Previous  threats  fill  a  certain  place  in  every  case  where 
they  are  brought  out  in  the  evidence.  If,  at  the  time  of  the 
killin"-,  the  party  is  doing  nothing  which  indicates  a  deadly 
design,  or  a  design  to  do  a  great  bodily  mischief — if  he  is  doin<^ 
nothing,  I  say,  of  that  kind — then  previous  threats  can  not  be 
considered  by  the  jury.  If  they  are  satisfied  from  the  law 
and  the  testunony  that  the  deceased  was  not  doing  anythincr 
that  amounted  to  a  deadly  attack,  or  there  is  no  question  in 
their  minds  as  to  what  the  attitude  of  the  deceased  was,  pre- 
vious threats  can  not  be  considered  by  them ;  thej'  can  not 
enter  into  their  consideration  of  the  case  by  way  of  justi- 
fying any  act  that  resulted  in  the  death  of  Charles  Hermes 
from  the  act  of  the  defendant ;  they  can  not  be  considered,  I 
say,  because  you  can  not  kill  a  man  because  of  previous  threats. 
You  can  not  weigh  in  the  balance  a  human  life  against  a  threat. 
Tliere  is  no  right  of  that  kind  in  law.  Threats  are  only 
admitted  as  illustrative  of  another  condition  that  exists  in  the 
case.  If  the  party  who  is  killed,  at  the  time  of  the  killing 
is  doing  that  which  indicates  a  purpose  to  do  great  bodily 
harm,  to  kill,  or  is  about  to  do  it,  and  goes  so  far  that  it  can 
be  seen  from  the  nature  of  the  act  what  his  purpose  is,  then 
for  the  purpose  of  enabling  you  to  more  clearly  see  the  situa- 
tion of  the  party  you  can  take  into  consideration  the  threats 
made  by  him.  But  if  there  is  an  absence  in  the  case  of  that 
which  indicates  a  deadly  design,  a  design  to  do  great  bodily 
harm,  really  or  apparently,  threat^  can  not  be  considered  in 
connection  with  the  asserted  right  of  the  defendant  that  he 
can  avail  himself  of  the  right  of  self-defense.  You  can  not 
do  that.  But  if  threats  are  made,  and  there  is  an  absence 
from  the  case  of  the  conditions  I  have  given  you  where  you 
can  use  them  as  evidence,  you  can  only  use  them  and  consider 
them  for  the  purpose  of  showing  the  existence  of  special  spite 
or  ill-will  or  animosity  on  the  part  of  the  defendant." 

And  again :  "  If  this  defendant  killed  this  party,  Charles 
Hermes,  because  the  old  man,  the  father  of  Charles  Hermes, 
had  threatened  him  with  violence,  or  threatened  to  have 
something  done  to  him  because  of  his  belief  that  he  had  done 
something  with  his  hogs  or  killed  them,  and  made  threats,  that 
is  no  defense,  that  is  no  mitigation,  but  that  is  evidence  of 


THOMPSON  V.  UNITED  STATES. 


210 


malice  aforethought;  it  is  evidence  of  premeditation;  it  is  evi- 
dence of  deliberation,  of  a  deliberately  formed  design  to  kill, 
because  of  special  spite,  because  of  a  grudge,  because  of  ill-will, 
because  of  animosity  that  existed  upon  the  part  of  this  defend- 
ant toward  those  people  in  the  field." 

While  it  is  no  doubt  true  that  previous  threats  will  not,  in 
all  circumstances,  justify,  or,  perhaps,  even  extenuate  the  act 
of  the  party  threatened  in  killing  the  person  who  uttered  the 
threats,  yet  it  by  no  means  follows  that  such  threats,  signify- 
ing ill-will  and  hostility  on  the  part  .of  the  deceased,  can  Ihi 
used  by  the  jury  as  indicating  a  similar  state  of  feel- 
ing on  the  part  of  the  defendant.  Such  an  instruction  was 
not  only  misleading  in  itself,  but  it  was  erroneous  in  the 
present  case,  for  the  further  reason  that  it  omitted  all  refer- 
ence to  the  alleged  conduct  of  the  deceased  at  the  time  of  the 
killing,  which  went  to  show  an  intention  then  and  there  to 
carry  out  the  previous  threats. 

The  instructions  which  have  thus  far  been  the  subject  of 
our  criticism  were  mainly  applicable  to  the  contention  that  the 
defendant  acted  in  self-defense,  but  they  also  must  have  l)een 
understood  by  the  jury  as  extending  to  the  other  proposition 
that  the  defendant's  act  constituted  the  crime  of  manslaughter 
and  not  of  murder.  The  charge  shows  that  the  instructions 
of  the  learned  judge,  on  these  two  distinct  defenses,  were  so 
blended  as  to  warrant  the  jury  in  believing  that  such  instruc- 
tions were  applicable  to  both  grounds  of  defense. 

Whether  this  be  a  just  view  or  not,  there  were  distinct  in- 
structions given  as  to  the  contention  that  the  act  of  killing  in 
this  case  was  manslaughter  and  not  murder,  which  wo  think 
can  not  be  sustained.  A  portion  of  such  instructions  was  as 
follows : 

*'  Now  I  have  been  requested  to  charge  you  upon  the  sub- 
ject of  manslaughter.  Manslaughter  is  defined  by  the  law  of 
the  United  States  to  be  the  wrongful  killing  of  a  human  being, 
done  wilfully  and  in  the  absence  of  malice  aforethought. 
There  must  be  out  of  the  case  that  which  shows  the  existence 
of  this  distinguishing  trait  of  murder,  to  find  the  existence  of 
a  state  of  case  that  authorizes  a  mitigation  of  the  offense  from 
murder  to  manslaughter.  It  is  an  unlawful  and  wilful  killing, 
but  a  killing  in  such  a  way  as  that  the  conduct  of  the  deceased 
Hermes,  in  this  case,  at  the  time  he  was  killed,  was  not  of  a 


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220 


AMERICAN  CRIMfNAL  REPORTS. 


character  to  authorize  him  to  shoot,  but  that  the  defendant 
could  so  far  have  the  benefit  of  that  conduct,  provocative  in 
its  nature,  as  that  he  could  ask  you  to  mitigate  his  crime,  if 
crime  exists  here,  from  murder  to  manslaughter.  Let  us  see 
what  is  meant  by  that.  It  can  not  grow  out  of  any  base  con- 
ception of  fear.  It  can  not  grow  out  of  a  state  of  case  where 
there  is  a  killing  because  of  threats  previously  made,  because 
of  that  which  evidences  special  spite  or  ill-will,  for  if  the  kill- 
ino-  is  done  on  that  ground,  and  if  it  is  shown  by  the  threats, 
and  the  previous  preparg-tion  of  the  defendant,  or  the  fact  of 
his  arming  himself,  and  going  back  to  the  field  where  they 
were  at  work,  and  while  there  he  shot  Charles  Hermes  to 
death,  it  can  not  be  evidence  of  that  condition;  but  at  the  time 
of  the  killing  there  must  have  been  that  in  the  conduct  of 
Charles  Hermes  in  the  shape  of  acts  done  by  him  to  provoke 
the  defendant  as  to  authorize  you  to  say  that  his  mind  was  so 
inflamed,  in  such  an  inflamed  condition,  that  the  defendant 
did  not  act  with  premeditation;  that  he  did  not  act  from  a 
previously  formed  design  to  kill,  but  that  the  purpose  to  kill 
sprang  into  existence  upon  the  impulse  of  the  moment,  be- 
cause of  the  provocative  conduct  of  Charles  Hermes  at  the  time 
of  the  killing,  that  would  be  a  state  of  manslaughter.  *  *  * 
The  law  says  that  the  previous  selection,  preparation  and  sub- 
sequent use  of  a  deadly  weapon  shows  that  there  was  a  pur- 
pose to  kill  contemplated  before  that  affray  existed,  and  when- . 
ever  that  exists,  when  it  is  done  unlawfully  and  improjierly  so 
that  there  is  no  law  of  self-defense  in  it,  the  fact  that  they  may 
have  been  in  an  actual  affray  with  hands  or  fists  would  not 
reduce  the  grade  of  the  crime  to  manslaughter." 

The  error  here  is  in  the  assumption  that  the  act  of  the  de- 
fendant in  arming  himself  showed  a  purpose  to  kill  formed  be- 
fore the  actual  affray.  This  was  the  same  error  that  we  found 
in  the  instructions  regarding  the  right  of  self-defense,  and 
brings  the  case  within  the  case  of  Gourko  v.  United  Skiten, 
previously  cited,  and  the  language  of  which  we  need  not  rei>eat. 

These  views  call  for  a  reversal  of  the  judgment,  and  it  is 
therefore  unnecessary  to  consider  the  assignments  that  allege 
errors  in  the  selection  of  the  jury. 

The  judgment  is  reversed  and  the  cause  remanded  for  a  new 
trial. 


STATE  V.  KNIGHT  ET  AL. 


221 


lit 
in 
if 


Note.— In  Gourko  v.  U.  S.,  158  U.  S.  183,  it  is  said:  A  person  who  has 
an  angry  altercation  with  another  person,  sucli  as  to  lead  him  to  believe  that 
lie  may  require  the  means  of  self-defense  in  case  of  another  encounter,  may 
l)e  jastifii'd,  in  the  eye  of  the  law,  in  arming  himself  for  self-defense;  and 
if  on  nu'fting  his  adversary,  on  a  subsequent  occasion,  he  kills  him,  but  not 
in  HKessary  self-defense,  his  crime  may  be  that  of  manslaughter  or  murder, 
ae  the  circumstances,  on  the  occasion  of  the  killing,  make  it  the  one  or  the 
other. 

If,  looking  alone  at  those  circumstances,  his  crime  be  that  of  man- 
slaughter, it  is  not  converted  into  murder  by  reason  of  his  having  previously 
armed  himself. 


State  v.  Knight  et  al. 


* 


Contempt: 


(3  So.  Dak.  509.) 

Civil  and  criminal— Review  by  writ  of  error—  Violation  of 
injunction. 


1.  Contempts  of  court  are  of  two  kinds—civil  and  criminal.    When  a  party 

refuses  to  do  something  which  he  is  ordered  to  do  for  the  benefit  or 
advantage  of  the  opposite  party,  such  as  disobedience  of  an  order  of 
court  for  the  payment  of  costs,  or  non-performance  of  the  awards  of 
arbitrators,  the  order  is  looked  upon  as  a  civil  execution  for  the  benefit 
of  the  injured  party,  although  the  proceedings  are  carried  on  in  the 
shape  of  a  criminal  process;  and  he  stands  committed  until  he  complies 
with  the  order.    The  order  in  such  case  is  not  punitive,  but  coercive. 

2.  If  the  contempt  consists  in  doing  a  forbidden  act,  injurious  to  the  oppo- 

site party,  the  process  is  criminal,  and  conviction  is  followed  by  fine 
and  imprisonment,  or  both.    This  is  purely  punitive. 

3.  Under  our  statutes  (Comp.  Laws,  §§  7499,  7500  and  7508)  writs  of  error 

are  used  to  remove  to  this  court  for  examination  and  review  the  record 
in  all  criminal  actions,  and  they  are  allowed  in  all  criminal  cases  from 
the  final  decisions  of  inferior  courts.  Criminal  contempt  proceedings 
are  properly  brought  to  this  court  by  writ  of  error. 

4.  While  an  appellate  court  has  jurisdiction  to  review  an  order  punishing 

for  a  criminal  contempt,  so  far  as  to  ascertain  whether  the  court  inflict- 
ing the  punishment  had  jurisdiction,  or  as  to  whether  the  words  or  acts 
charged  constituted  a  contempt,  yet  the  decision  of  the  court  making  it 
is  not  to  be  lightly  reviewed.  Its  judgment  should  not  be  reversed 
unless  it  is  apparent  that  no  contempt  has  been  committed,  or  that  the 
court  exercised  its  authority  in  a  capricious,  oppressive  or  arbitrary 
manner. 

5.  An  injunction  order  is  in  a  certain  sense  a  atiperaedeas,  and  operates  to 

suspend  the  proceedings  enjoined  by  it.  An  attachment  for  contempt 
will  lie  against  one  to  whom  the  writ  is  directed,  or  w^ho  has  notice  of 
its  issuance,  if  in  the  face  of  its  restraining  force  such  person  proceeds 
in  the  matter  enjoined. 


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im 


222 


AMERICAN  CRIMINAL  REPORTS. 


Error  to  Circuit  Court,  Marshall  County;  A.  "W.  Campbell, 

Judge. 

Proceedings  by  the  state  against  Daniel  Knight  and  Daniel 
Hubbard  to  compel  defendants  to  show  cause  Avhy  they  should 
not  be  punished  for  contempt  for  disobeying  an  order  of  court. 
Defendants  were  adjudged  guilty  of  contempt,  and  bring  error. 

11.  R.  Turner  and  Tavhman  &  Potter^  for  the  plaintiffs  in 
error. 
J.  II.  McCoy  and  Robert  Bollard,  Attorney-General,  for  the 

State. 

Bknnett,  p.  J.  On  the  17th  day  of  October,  1891,  an  order 
was  made  by  the  Judge  of  the  fifth  judicial  circuit,  directed  to 
A.  M.  Knight,  his  agents  and  attorneys,  restraining  them  from 
making  a  sale  by  advertisement  of  certain  mortgaged  property. 
The  sale  under  said  foreclosure  had  been  previously  fixed  for 
2  o'clock  p.  M.,  on  the  17th  day  of  October,  at  Langford,  S.  D., 
distant  from  the  place  where  the  order  was  made  some  fifty 
miles.  About  1  o'clock  of  that  day  one  La  Due,  the  mortgagor 
in  said  mortgage,  received  the  following  telegram,  written 
upon  one  of  the  Western  Union  Telegraph  Company's  blanks : 
"  Aberdeen,  S.  D.,  10,  17,  1891.  To  Frank  La  Due,  Langford, 
S.  D.:  Have  signed  order  restraining  sale  under  mortgage, 
Frank  La  Due  to  A..  M.  Knight.  A.  W.  Campbell."  A.  W. 
Campbell  was  the  Judge  of  the  fifth  judicial  circuit,  but  did  not 
sign  the  telegram  officially.  This  telegram  was  exhibited  to 
the  defendants,  Daniel  Knight  and  Daniel  Hubbard,  the  agents 
of  A.  M.  Knight,  a  short  time  before  the  sale,  b^  La  Due,  the 
mortgagor,  who  requested  them  to  refrain  from  selling  the 
property.  The  defendants  flisregarded  the  telegram,  and  pro- 
ceeded to  make  the  sale.  Upon  an  affidavit  setting  out  these 
facts  the  Judge  made  an  order  requiring  the  defendants  to 
appear  at  the  January  term,  1892,  of  the  Circuit  Court  of  Mar- 
shall County,  and  show  cause  why  they  should  not  be  punished 
for  contempt  for  wilfully  disobeying  his  order.  Upon  the 
return  day  the  defendants  appeared,  and  after  hearing  the  evi- 
dence in  the  case,  the  defendants  were  adjudged  guilty  of  con- 
tempt, and  fined  $25  each,  and  ordered  committed  to  the  county 
jail  until  said  fine  was  paid.  To  this  order  the  writ  of  error  is 
issued. 


STATE  V.  KNIGHT  ET  AL. 


22[ 


We  are  confronted  at  the  threshold  with  the  objection  that 
a  writ  of  error  does  not  lie  in  a  case  of  this  character.  If  the 
objection  be  well  taken,  it  is  certainly  fatal  to  this  proceeding 
and  the  only  order  that  can  properly  be  made  by  this  court  is 
one  dismissing  the  writ.  At  common  law,  judgments  of  supe- 
rior courts  of  record  in  matters  of  contempt  were  final,  and 
not  revisable  in  any  other  court  upon  appeal  or  writ  of  error. 
By  statute  in  some  states  the  remedy  by  appeal  and  writ  of 
error  has  been  given.  There  is  no  good  reason,  however,  in 
any  case  that  we  have  examined,  why  cases  of  contempt  are 
not  subject  to  review  in  some  manner  by  an  Appellate  Court. 
Es  parte  Howe,  7  Cal.  175;  Ee  parte  Langdon,  25  Vt.  680;  Rail- 
road.  Co.  v.  City  of  Wheeling,  13  Gratt.  (Va.)  40;  Stuart  v. 
People,  3  Scam.  (111.)  395;   Yates  v.  People,  6  Johns.  (N.  Y.) 

337. 

The  power  to  punish  for  contempt  is  one  of  the  highest  pre- 
rogatives of  a  court  of  justice,  and  is  inherent  in  it.  Without 
it  the  citizen  would  be  without  protection  or  security,  and  upon 
its  bold  and  prudent  exercise  depend  the  respect,  the  dignity 
and  efficiency  of  courts  of  justice  as  arbiters  of  human  rights. 
The  mandates  of  a  court  must  in  all  cases  be  obeyed.  Cossart 
V.  State,  14  Ark.  541;  Ex  parte  Eohimon,  19  Wall.  (U.  S.)  505; 
Ex  parte  Smith,  28  Ind.  47;  In  re  Moore,  63  N.  C.  397;  State 
'0.  Earl,  41  Ind.  464;  Taylor  v.  Moffitt,  2  Blackf.  (Ind.)  305; 
People  V.  Pirfenhrink,  96  111.  68.  If  wrong  be  done  a  citizen 
by  error  of  facts  or  judgment  in  the  exercise  of  this  power, 
there  must  be  some  channel  of  redress  provided  by  law  to  rec- 
tify the  wrong.  In  the  absence  of  statutory  enactments,  there 
must  be  some  tribunal  to  review  and  correct  this  error,  and 
some  road  leading  to  that  tribunal  which  aggrieved  parties  may 
take  to  reach  it.  The  practice  of  bringing  up  for  the  consid- 
eration of  appellate  courts  contempt  proceedings  by  writ  of 
error  to  the  final  judgment,  has  been  allowed  in  many  of  the 
states.  See  cases  cited  above.  Winkelman  v.  People,  50  111. 
449;  Butler  v.  People,  2  Colo.  295;  Storey  v.  People,  79  III.  45; 
Myers  v.  State,  46  Ohio  St.  473;  Wyatt  v.  People,  17  Colo.  252. 
In  other  states  the  writs  of  certiorari  and  habeas  corpus  have 
been  resorted  to.  State  v.  District  Court,  41  Minn.  42; 
State  V.  Webber  (Minn.),  37  N.  W.  949;  In  re  Fanning,  40 
Minn.  4;  Batchdder  v.  Moore,  42  Cal.  413.  But  under  our 
statute  it  would  seem  that  the  writ  of  error  was  the  most  ap- 


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AMERICAN  CRIMINAL  REPORTS. 


propriate  mode  to  reach  the  desired  end.  Under  the  common 
law,  writs  of  error  were  considered  writs  of  right,  and  issued 
of  course  in  all  criminal  cases  not  capital.  In  capital  criminal 
cases  it  was  a  writ  of  grace,  and  issued  on  motion  or  petition. 
See  Yates  v.  People,  6  Johns.  (N.  Y.)  372,  where  a  large  num- 
ber of  cases  are  cited,  and  an  able  and  extensive  exposition  of 
proceedings  in  contempt  is  made  by  the  court.  Under  our 
statute,  writs  of  error  are  used  to  remove  to  this  court,  for  ex- 
amination and  review,  the  record  in  criminal  actions,  these 
writs  to  be  allowed  in  all  cases  from  the  final  decisions  of  in- 
ferior courts,  under  such  regulations  as  are  prescribed  by  law. 
The  writ  may  be  sued  out  by  the  defendant  from  a  final  judg- 
ment of  conviction,  from  an  order  refusing  a  motion  in  arrest 
of  judgment,  or  from  an  order  refusing  a  new  trial.  See 
Ck)mp.  Laws,  §§  7499,  7500,  7502.  The  question  of  review  by 
writ  of  error  would  then  seem  to  rest  upon  the  proposition  as 
to  whether  contempt  of  court  is  a  specific  criminal  offense  or 
not.  It  is  no  doubt  true  that  attachment  for  contempt  is  some- 
times regarded  as  process  in  a  civil  action. 

Blackstone  (in  Book  4,  c.  20)  treats  of  contempt  under  the 
head  of  "  Summary  Convictions."  They  are  classed  with  other 
misdemeanors,  from  which  they  are  distinguished  only  by  the 
mode  in  which  they  are  prosecuted,  every  superior  court 
being  necessarily  invested  with  jurisdiction  to  punish  contempt 
of  its  authority  by  summary  process. 

After  enumerating  the  different  species  of  contempt,  he  men- 
tions "  those  committed  by  parties  to  any  suit  or  proceeding 
before  the  court,  as  by  disobedience  of  any  rule  or  order  made 
in  the  progress  of  a  cause,  by  non-payment  of  costs  awarded  by 
the  court  upon  a  motion,  or  by  non-observance  of  awards  duly 
made  by  arbitrators  or  umpires,  after  having  entered  into  a 
rule  for  submitting  to  such  determination.  Indeed,  the  attach- 
ment for  most  of  the  species  of  contempt,  and  especially  for 
non-payment  of  costs  and  non-performance  of  awards,  is  to  be 
looked  upon  rather  as  a  civil  execution  for  the  benefit  of  the 
injured  party,  though  carried  on  in  the  shape  of  a  criminal 
process  of  contempt  of  the  authority  of  the  court;  and  there- 
fore it  hath  been  held  that  such  contempt  and  process  thereon, 
being  properly  the  civil  remedy  of  individuals  for  a  private 
injury,  are  not  released  or  affected  by  the  general  act  of  par- 
don."   Then  by  a  prrity  of  reasoning  it  would  seem  that  civil 


STATE  V.  KNIGHT  ET  AL. 


225 


contempts  would  be  appealable  under  the  provision  of  the 
statute  regulating  apjieals.  But  the  question  remains  whether 
the  contempt  alleged  against  the  plaintiffs  in  error  in  the  case 
at  bar  is  one  of  these.  It  arose  in  the  alleged  disobedience  of 
an  injunction  order  restraining  the  plaintiffs  in  error  from 
foreclosing  a  mortgage,  and  so  far  it  would  probably  come 
within  those  classes  of  cases  described  by  Jilackstone  in  the 
above  quotation.  His  language  is,  "  most  of  the  species,"  and 
the  examples  given  in  illustration  are  of  nonpayment  of  costs 
and  nonperformance  of  awards.  These  examples  clearly  indi- 
cate the  criterion  by  which  it  may  be  determined  whether  the 
process  is  civil  or  criminal.  If  the  contempt  consists  in  the 
refusal  of  a  party  to  do  something  which  he  is  ordered  to  do 
for  the  benefit  or  advantage  of  the  opposite  party,  the  process 
is  civil,  and  he  stands  committed  till  he  complies  with  the 
order.  The  order  in  such  a  case  is  not  in  the  nature  of  a  pun- 
ishment, but  is  coercive,  to  compel  him  to  act  in  accordance 
with  the  order  of  the  court.  If,  on  the  other  hand,  the  con- 
tempt consists  in  the  doing  of  a  forbidden  act,  injurious  to  the 
opposite  party,  the  process  is  criminal  and  conviction  is  fol- 
lowed by  fine  or  imprisonment,  or  both;  and  this  is  by  way  of 
punishment.  In  one  case  the  private  party  is  interested  in  the 
enforcement  of  the  order,  and,  the  moment  he  is  satisfied,  the 
imprisonment  ceases.  On  the  other  hand,  the  state  alone  is 
interested  in  the  enforcement  of  the  penalty,  it  being  a  pun- 
ishment which  operates  in  terrorem,  and  by  that  means  has  a 
tendency  to  prevent  a  repetition  of  the  offense  in  other  similar 
cases.  This  rule,  as  definitely  stated,  has  not  been  expressly 
recognized  by  any  case  coming  under  our  observation,  but  is 
consistent  with  all  the  decisions,  ^ew  Orleans  v.  Steamship 
Co.,  20  Wall.  (U.  S.)  387;  Railroad  Co.  v.  Wheeling,  13  Gratt. 
(Va.)  57;  Ex  parte  Kearney,  7  Wheat.  (U.  S.)  38;  Stuart  v. 
People,  3  Scam.  (111.)  395;  Ex  parte  Thatcher,  2  Gilman  (111.), 
170;  Crook  v.  People,  16  111.  536. 

In  the  case  of  Ex  parte  Thatcher,  mpra,  Justice  Scates  said : 
"  It  is  indeed  denied  that  any  appeal  or  writ  of  error  lies  from 
its  judgment  for  contempt  by  any  court.  I  will  not  undertake 
to  decide  the  general  question,  but  the  power  has  its  limits. 
The  court  may  not  treat  any  and  every  act  as  a  contempt,  and 
I  have  no  doubt  that  the  appellate  court  may  revise  and  reverse 
its  judgment  when  it  exceeds  its  jurisdiction  by  treating  that 
15 


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226 


AMERICAN  CRIMINAL  REPORTS. 


as  a  contoinpt  which  in  law  is  no  contempt,  and  can  not  1)l'. 
The  supervision  will  be  to  ascertain  that  fact."  This  case  was 
brought  to  the  Supreme  Court  by  writ  cf  error.  In  the  case  of 
I^ew  Orleans  v.  Steatmhip  Co.,  Juclg-e  Swayne,  in  delivering  the 
Opinion  of  the  court,  said :  "  Contempt  is  a  siiecific  criminal 
offense.  The  imposition  of  a  fine  was  a  judgment  in  a  criminal 
case.  That  part  of  the  decree  is  as  distinct  from  the  residiu- 
as  if  it  were  a  judgment  upon  an  indictment  for  perjury,  com- 
mitted in  a  deposition  read  at  the  hearing.  Tliis  court  can 
take  cognizance  of  a  criminal  case  only  upon  a  certificate  ot 
division  in  opinion  " — and  dismissed  the  writ  of  error  because 
the  Supreme  Court  had  no  jurisdiction  to  review  a  criminal 
offense.  Railroad  Co.  v.  Wheelmg,  supra,  was  a  case  brougli  t 
to  the  Supreme  Court,  the  defendant  having  been  fined  for  con- 
tempt in  disobeying  an  interlocutory  order  made  in  a  case. 
The  Court  said:  "A  contempt  of  court  is  in  the  nature  of  a 
criminal  offense,  and  the  proceeding  for  its  punishment  is  in 
the  nature  of  a  criminal  proceeding.  The  judgment  in  such  a 
proceeding  can  be  reviewed  by  a  superior  tribunal  only  by  writ 
of  error,  and  not  always  in  that  way."  To  the  same  effect,  see 
Fischer  v.  Hayes,  6  Fed.  Rep.  63.  The  case  at  bar,  under  the 
rule  above  announced,  presents  a  contempt  proceeding  in  tlie 
nature  of  a  criminal  action,  and  we  think  it  was  properly 
brought  to  this  court  by  writ  of  error.  Consequently  the  ob- 
jection made  by  the  Attorney-General  can  not  be  sustiii»i' 
The  cases  of  Hayes  v.  Fischer,  102  U.  S.  121,  Exparte  Keu 
7  Wheat.  (U.  S.)  38,  and  New  Orleans  y.  Steamship  Co.,  20  >  11. 
(U.  S.)  387,  cited  by  the  Attcney-General,  while  sustaining  tiie 
position  that  contempt  proceedings  are  criminal  in  their  nature, 
and  for  that  reason  the  Supreme  Court  of  the  United  States 
would  not  take  jurisdiction  of  them,  do  not  decide  that  writ  of 
error  was  not  the  proper  process  for  bringing  up  the  cases  for 
review,  and  they  are  not  proper  authorities  to  sustain  the  ob- 
jection that  this  is  not  the  proper  remedy. 

Having  held  that  writ  of  error  is  the  proper  mode  of  bring- 
ing up  for  review  criminal  contempt  proceedings,  the  next 
question  is,  to  what  extent  will  such  proceedings  be  reviewed  ? 

It  seems  to  be  well  settled  that  contempt  orders  or  judg- 
ments, while  not  ordinarily  reversible  for  mere  error,  may  be 
set  aside  for  want  of  jurisdiction  of  the  court  over  the  subject- 
matter  or  the  defendant,  or  for  want  of  power  to  render  the 


STATE  V.  KNIGHT  ET  AL. 


227 


particular  judgment  or  tho  order  comi)lainod  of.  Ee  jmrte 
Jiciil,  !<»(»  ij.  S.  13-23;  Ilayne,  NcwTr.  *te  \\>\\,  %  19S;  2  Hish. 
Cr.  L.,  §  2fiS;  Vilas  v.  linrton,  27  Vt.  50;  Pmjde  v.  luUy,  24 
N.  Y.  74;  PhilUpsv.  Welch,  11  Nev.  ISS;  State  v.  Gnllownij,  5 
Coldw.  (Tenn,)  337.  Bishop,  in  the  section  cited,  fnqmi,  says: 
'•  It  is  not  within  the  phm  of  this  vohime  to  discuss  questions 
of  practice,  yet  it  may  be  observed  that  the  very  nature  of 
contempt  compels  the  court  against  which  it  is  committed  to 
proceed  against  it,  and,  if  the  court  has  jurisdiction,  precludes 
any  other  or  superior  tribunal  from  taking  cognizance  of  it, 
wliethcr  directly  on  an  a])peal,  or  otherwise.  Tnder  peculiar 
provisions  of  law,  however,  in  some  of  the  states,  and  the  pres- 
sure of  modern  o])inion,  the  superior  courts  do  in  a  measure — 
not  fully — correct  errors  of  the  inferior  ones  in  the  matter." 
In  T7Aw  V.  Burton,  fiupra,  it  is  said  :  "  The  English  courts 
iiave  always  held  that  proceedings  for  contempt  in  one  court, 
when  the  court  has  jurisdiction  of  the  subject-matter  and  of 
the  ])arties,  are  not  revisable  in  any  other  court,  *  *  * 
And  no  cases  are  brought  to  light  where  such  proceedings  in 
the  superior  court  have  ordinarily  been  held  revisable,  unless 
when  the  proceedings  were  so  irregular  as  to  be  against  the 
law,  and  to  give  the  court  no  proper  jurisdiction."  In  the 
case  of  Pcoi)le  v.  Kelly,  above  cited,  the  Court  said :  "  The 
(juestion  whether  the  alleged  offender  really  committed  the 
act  charged  will  be  conclusively  determined  by  the  order  or 
judgment  of  the  court,  and  so  with  equivocal  acts,  which  may 
be  culpable  or  innocent,  according  to  circumstances;  but,  when 
the  act  is  necessfirily  innocent  or  justifiable,  it  would  be  pre- 
posterous to  hold  it  a  cause  of  imprisonment."  In  Phillips  v. 
Wdch,  «'  m,  it  was  held  that  the  review  must  be  limited  to 
the  question  of  jurisdiction,  and  that  no  error  of  fact  or  law 
not  jurisdictional  in  character  could  be  considered.  These  de- 
cisions are  in  harmony  with  the  decisions  in  California.  Ex 
parte  P  rkins,  IS  Cal.  00;  People  v.  0' Neil,  47  Id.  109;  Roe  v. 
Superior  Court,  60  Id.  93;  Hayne,  New  Tr.  &  App.,  198.  See, 
also,  Romeijn  v.  Caplis,  17  Mich.  455. 

While  we  have  jurisdiction  to  review  an  order  punishing  for 
a  criminal  contempt,  so  far  as  to  ascertain  whether  the  court  in- 
flicting the  punishment  had  jurisdiction,  and  as  to  whether  the 
words  or  acts  charged  constitute  a  contempt,  yet  the  decision 
of  the  court  making  it  is  not  to  be  lightly  reversed.    It  ought 


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228 


AMERICAN  CRIMINAL  REPORTS. 


not  to  be  reviewed  unless  it  is  apparent  that  no  contempt  has 
been  committed,  or  that  the  court  exercised  its  authority  in  a 
capricious,  oppressive  or  arbitrary  manner.  A  case  mjfrht 
arise,  even  if  the  court  has  jurisdiction,  where  the  acts  alleged 
as  a  contempt  were  not  contemptuous,  nor  intended  to  be.  In 
the  case  at  bar  there  can  be  no  doubt  the  court  below  had 
jurisdiction  to  punish  for  contempt  a  person  who  wilfully  and 
intentionally  violated  an  order  of  court  restraining  and  forl)i(l- 
ding  a  sale  of  property  under  a  mortgage  foreclosure.  The 
only  question,  then,  arising  in  this  case,  is  whether  the  act  of 
the  })iaintiffs  in  error  constitutes  a  contempt.  The  record 
shows  that  such  an  order  was  made,  and  it  is  alleged  that  it 
was  brought  to  the  knowledge  of  the  plaintiffs  in  error, 
restraining  the  sale  under  the  mortgage  of  Frank  La  Due 
to  A.  M.  Knight;  yet  in  the  face  of  this  knowledge  these 
plaintiffs  in  error  did  proceed  to  make  the  sale.  But  it  is  saiil 
the  manner  in  which  this  was  communicated  to  them  did  not 
import  to  them  such  a  legal  notice  as  they  were  bound  to  re- 
spect. If  we  were  inclined  to  agree  with  this  view  from  the 
evidence,  we  think,  under  the  rule  above  announced,  we  would 
not  be  justified  in  reversing  a  court  which  had  found,  as  a 
matter  of  fact,  to  the  contrary.  The  judgment  of  the  court 
recites,  after  hearing  the  affidavits  of  several  parties  and  the 
argument  of  counsel,  that  the  plaintiffs  in  error  did  wilfully 
and  knowingly  violate  the  injunction  order,  and  are  guilty  of 
contempt.  This  finding  of  fact,  when  based  upon  conflicting 
testimon}^  or  upon  testimony  which  is  susceptible  of  more 
than  one  construction,  will  not  be  set  aside  by  an  appellate 
court.  The  plaintiffs  in  error  admit  the  receipt  of  the  tele- 
gram stating  an  order  had  been  made  restraining  them  from 
proceeding  with  the  sale.  This  was  received  before  the  sale 
had  taken  place.  They  do  not  deny  that  they  knew  that  A. 
W.  Campbell  was  the  judge  of  the  Circuit  Court  of  the  county 
in  which  the  sale  was  to  take  place.  If  any  doubts  existed  as 
to  the  genuineness  of  the  telegram,  there  could  have  been  no 
so  "'CMS  consequences  following  a  postponement  of  the  sale 
uniil  such  time  as  this  could  have  been  ascertained,  and  it  was 
their  duty  to  have  done  so.  Not  having  done  so,  as  reasonable 
men  would  have  done,  the  consequence  must  follow. 

The  judgment  of  the  court  below  is  aflHrmed.     All  the 
judges  concur. 


STATE  V.  KNIGHT  ET  AL. 


229 


Note. -Ciril  or  Criminal,  wJien—Jndgmen t--Juriit<liefion—Hoheos  Corpus 
—Le(jiskttiire—Poiver  to  pnniHh — Constriictiiv  Contevipt — Order  of  Cunr* 
should  recite  fads.— A  declaration  in  a  judgment  rendered  ujion  jdeadings 
which  do  not  allege  or  admit  an  order  of  court  or  its  disobedi<.nce,  that  such 
an  order  was  made  and  dLsobeyed  will  not  cure  a  jurisdictional  defect. 
Where  the  court  below  is  without  jurisdiction  or  the  juilg'nent  is  wholly 
unauthorized,  an  appellate  court  may  set  it  aside.  In(piiry  into  juris- 
diction may  be  had  either  through  habeas  corpiw.  or  by  writ  of  error.  The 
distinction  between  civil  juid  criminal  contempts  is  i)Iainly  drawn:  the 
former  consists  in  disobeying  some  judicial  order  made  in  the  interest  of 
another  party  to  the  jiroceeding — the  latter,  of  acts  disrespectful  to  the  court 
or  its  procjess.  or  obstructive  to  the  administration  of  justice,  or  calculated 
to  l)ring  the  coiirt  into  disrepute.  The  power  of  courts  to  punish  contemjita 
is  inherent,  and  a  judgment  of  both  fine  and  imprisonment  in  a  criminal 
contempt  is  valid.  It  wiis  never  intended  by  the  framers  of  our  constitu- 
tion that  the  constitutional  guaranties  which  they  provided  relating  to 
criminal  prosecutions  should  abrogate  or  change  the  summary  proceedings 
for  contempts  without  indictment  or  trial  by  jury,  which  have  always  l>een 
recognizeil.  Legislatures,  while  they  may  regulate,  they  can  not  take 
away  from  courts  the  power  to  punish  for  contempts.  It  is  now  the 
rule,  both  at  common  law  and  statute,  that  a  court  can  only  have  jurisdic- 
tion over  constructive  contempts  when  the  same  are  brought  to  the  coiu't's 
attention  by  an  affidavit  stating  facts,  which,  if  established,  would  consti- 
tute a  contemi>t.  Whether  or  not  the  same  rule  obtains  in  proceedings  for 
actual  contempts,  a  due  regard  for  the  rights  of  the  accused  prompts  and 
sustains  such  practice.  In  Wyatt  t\  People,  17  Col.  252,  Justice  Helm,  in 
announcing  the  Opinion  of  the  Court  said:  Statutes  declaring  that  the 
judgment  in  contempt  proceedings  shall  be  "final  and  conclusive,"  simply 
exjjress  a  princ-iple  of  the  common  law.  This  principle  is  decisive  against 
the  right  of  review  on  the  ground  of  mere  error  in  the  trial.  It  does  not, 
however,  preclude  inijuiry  into  the  ([uestion  of  jurisdiction. 

If,  as  a  matter  of  fact,  the  act  complained  of  constituti?d  no  contempt, 
the  court  is  without  jurisdiction  to  find  the  party  guilty,  and  its  judgment 
will  be  set  aside  by  the  proper  appellate  tribunal.  A  like  result  also  follows 
when,  though  the  act  may  have  been  a  contempt,  yet  the  judgment  pro- 
nounced is  wholly  unauthorized.  Rap.,  Contempt,  g  155;  Cooper  v.  People, 
lit  Colo.  337:  Thomas  v.  People,  14  Colo.  254;  Ex  parte  Grace,  12  Iowa,  208. 
M'here  imprisonment  is  being  suffered,  /laben.y  coJ7>(t.s  is  the  asual  procedure 
for  inquiry  into  the  question  of  jurisdiction.  And  in  Butler  v.  People, 
2  Colo.  295.  a  doubt  was  expressed  concerning  the  power  to  investigate  con- 
teniitts  by  writ  of  error.  But  the  latter  method  of  procedure  possesses 
decided  advantages  over  the  former,  and  jurisdiction  in  cases  pending  on 
error  for  review  is  always  a  pertinent  inquiry.  In  Cooper  v.  People,  supra, 
the  subject  w.ts  carefully  considered  and  the  writ  of  error  sustained.  The 
practice  has  been  recognized  in  a  number  of  other  cases,  and  may  now  be 
regarded  as  firmly  established  in  this  state.  Hughes  v.  People,  5  Colo.  436; 
Thomas  v.  People,  supra;  Mullin  v.  People,  15  Colo.  437.  But  whether  the 
judgment  in  contempts  be  examined  upon  habeas  corpusorhy  writ  of  error, 
tlie  inquiry  is  always  limited  to  the  single  question  of  jurisdiction,  and  all 
other  matters  are  carefully  excluded.  The  jurisdiction  of  the  court  below 
in  the  case  at  bar  is  challenged  upon  both  of  the  grounds  above  mentioned. 


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280 


AMERICAN  CRIMINAL  REPORTS. 


Counsel  for  plaintiff  in  error  strenuously  contend -Fi/'sf,  that  no  contempt 
was  coniinittecl;  and  second,  tliatthe  judgment,  had  there  been  aconteiiiiit, 
was  unwarranted  by  law.  We  proceed  to  consider  these  jurisdictionai 
objections,  revei-siug,  however,  in  the  discussion,  the  order  of  their  state- 
ment above. 

1.  Wyatt  was  sentenced  to  both  fine  and  imprisonment,  the  imprison- 
ment not  being  conditional  upon  payment  of  the  fine.  But  section  334  of 
the  Civil  Code,  supra,  limits  the  penalty  to  fine  or  imprisonment,  forbidding 
the  infiiction  of  both  as  substantive  punishments  in  the  same  case.  It  is 
conceded  that  we  have  no  other  statute  uiK)n  the  subject,  and,  if  the  Code 
provision  be  api)licable,  the  court  clearly  exceeded  its  jurisdiction  in  i)ro- 
nouncing  judgment.  It  was  upon  this  ground  that  the  supersedeas  was 
allowed  when  the  writ  of  error  issued. 

The  statute  in  question,  as  indicated,  is  a  part  of  the  Civil  Code.  Tliis 
act  is  by  its  title  expressly  limited  to  procedure  in  civil  actions.  The  inlii- 
bition  of  section  21,  art.  5,  of  the  constitution,  against  embodying  in  acts 
subjects  not  clearly  expressed  by  the  title,  forbids  legislation  in  this  act  re- 
lating to  criminal  offenses  or  procedure.  If,  therefore,  Wyatfs  alUgi-d 
contempt  be  criminal,  the  provision  in  question  is  not  ajtplicable,  and  the 
judgment  before  us  is  valid,  since  it  would  have  been  proper  at  the  common 
law.  -i  Bl,  Counn.  c.  20.  In  New  Orleans  v.  Steamship  Co.,  20  Wall.  387, 
it  is  declared,  without  qualification,  that  "contempt  of  court  is  a  specific 
criminal  offense,"  and  that  the  judgment  therein  is  "a  judgment  in  a  crim- 
inal ciise."  This  court  in  Teller  v.  People,  7  Colo.  451,  asserttnl  that  *'  the  im- 
position of  fini-s  and  penalties  in  contempt  proceedings  pertains  to  criminal, 
and  not  to  civil,  jurisprudence,"  and  numerous  cases  may  be  found  con- 
taining umjualified  declarations  of  similar  import.  Other  opinions  there 
are  which,  like  that  in  Welch  v.  Barber,  H2  Conn.  147,  on  the  contrary, 
clearly  indicate  that  many  of  these  proceedings  are  civil,  and  not  criminal. 
But  while  the  apparent  conflict  of  views  can  not  in  all  cases  Ite  reconciled, 
much  of  the  inconsistency  disappear  if  contempts  be  regarded  as  civil  or 
criminal,  .iccording  to  their  nature  and  effect.  This  distinction  is  sulwlan- 
tially  recognized  by  Sir  William  Blackstone,  and  may  now  l)e  regarded  as 
grafted  uiK)n  the  ancient  Law  touching  these  offenses.  Mr.  Rapalje,  in  his 
works  upon  Contempts,  at  section  21,  gives  the  best  general  definitions  relat- 
ing thereto  we  have  found.  He  says  :  "  '  Civil  contempts '  ai'e  those  (paisi 
contemi)ts  which  consist  in  failing  to  do  something  which  thecontemnor  is 
ordered  by  the  court  to  do  for  the  benefit  or  advantJige  of  another  party  to  the 
proceeding  lx?fore  the  court;  while  '  criminal  contempts '  are  all  those  acts 
in  disrespect  of  the  court  or  its  process,  or  which  obstruct  the  administra- 
tion of  justice,  or  tend  to  bring  the  court  into  disrepute."  To  the  former 
class  of  contempts  belong  such  acts  as  the  disobedience  of  an  injunction 
issued  at  the  suit  of  a  private  party.  Incidentally,  the  (;ourt  may  vindicate 
its  authority,  but  the  individual  alone  is  interested  in  the  enforcement  of 
the  order,  and  usually  institutes  the  contempt  proceeding.  Formerly,  the 
process  whereby  courts  of  chancery  enforced  all  their  decrees  was  in  form 
and  in  name  an  attachment  for  contempt.  To  the  latter  class  of  contempts 
belong  such  acts  "s  misconduct  by  attorneys  or  other  officere.  disoljedience 
of  8ub|XBnas  or  other  process,  disturbance  or  insolent  liehavior  in  the  pres- 
ence or  immediate  vicinity  of  the  court,  and  the  like.  4  Bl.  Comm.  c.  20, 
supra;  Phillips  v,  Welch,  11  Nev.  187;  Welch  v.  Barber,  supra;    Crook  v. 


STATE  V.  KNIGHT  ET  AL. 


231 


Prnpk.  16  111.  534;   Ex  parte  Hardy,  68  Ala,  303  (dissenting  opinion  by 
Brkkell,  C.  J.);  In  re  Watson,  8  Lans.  408;  Hawley  v.  Bennett,  4  Paige 

1(53. 

The  foregoing  classification  is  not  affected  by  the  fact  that  the  procedure 
is  in  most  instances  substantially  the  same,  whether  the  contempt  be  civil  or 
criminal.  Nor  is  the  character  of  the  contempt  in  this  regard  controlled  by 
the  fhiu-acter  of  the  court  in  which  it  occurs.  For  centuries  courts  clothed 
with  civil  jurisdiction  only,  have  investigated  and  punished  those  contempts 
which  are  classified  as  criminal.  It  is  to  be  observed,  also,  tiiat  the  nature 
of  the  pending  proceeding  (as  to  whether  it  be  civil  or  criminal)  does  not 
necessarily  determine  the  nature,  in  this  particular,  of  the  contempt.  In 
regarding  a  large  proportion  of  the  contempts  of  court  as  constituting  crim- 
inal offenses,  we  do  not  decide  that  the  summary  proceeding  by  attach- 
ment is  unconstitutional.  It  is  true  that  section  8  of  the  bill  of  rights,  after 
providing  that  felonies  shall  be  proceeded  against  by  indictment,  declares 
that,  "  in  all  other  cases,  offenses  shall  b«  prosecuted  criminally  by  indict- 
ment or  information."  And  sections  16  and  23  of  the  same  article  guar- 
antee a  trial  by  jury  in  criminal  prosecutions.  But  these  constitutional  pro- 
visions do  not  relate  to  contempt  proceedings.  Nor  is  tlie  summarj'^  manner 
of  punishing  contempts  inimical  to  section  25  of  the  bill  of  rights,  whicli 
says  that  no  one  shall  be  deprived  of  "liberty"  without  "  due  process  of 
law." 

The  power  to  punish  contetnpts  is  universally  recognized  as  inherent  in 
all  superior  courts,  and  this  power  is  now  generally  accorded  to  inferior 
courts  as  well.  The  exercise  of  this  power  by  summary  attadiment  pro- 
ceeilin'j;a  is  as  old  as  the  common  law.  It  antedates  in  tlie  common  law  all 
constitutions  and  all  statutes,  even  that  of  Magna  Charta.  Mr.  Blackstone 
says:  "  We  find  it  acjtually  exercised  as  early  as  the  annals  of  our  law  ex- 
tend, and  though  a  very  learned  author  seems  inclinable  to  derive  this  pro- 
cess from  the  statute  of  Westm.  2  (13th  Ed.,  voJ.  1,  c.  39,)  *  *  *  yet  he 
afterward  more  justly  concludes  that  it  is  a  part  of  the  law  of  the  land, 
anil,  as  such,  is  confirmed  by  the  statute  of  Magna  Cliarta"  Book  4,  Ham- 
mond's Bl.  Comm.,  p.  365.  Both  the  right  to  punish  contemjits  and  the 
I  tower  to  proceed  in  a  summary  manner  are  essential  to  the  performance  of 
tlie  very  functions  for  which  courts  are  created.  The  learned  author  just 
mentioned  declares  that  they  "result  from  the  first  principles  of  judicial 
establishments,  and  must  be  an  inseparable  attendant  upon  every  superior 
tribunal."  But  if  the  proceeding  for  contempt  could  only  be  instituted  by 
indictment  or  information,  and  if  the  accused  were  entitled  to  a  trial  by 
jury,  it  is  obvious  that  great  difficulty  and  delay  would  be  occasioned  to 
the  transaction  of  ordinary  judicial  business,  and  the  wise  purpose  of  the 
power  would  in  many  instances  be  defeated.  The  framers  of  our  constitu- 
tion never  intended  to  thus  interfere  with  the  due  and  orderly  administra- 
tion of  justice.  It  was  not  their  purpose  to  have  the  procedure  designated 
in  the  sections  mentioned  cover  contempts  of  court,  and  thus  give  this 
class  of  offenses  a  status  theretofore  unknown  in  either  the  statutory  or  the 
common  law.  The  constitutional  guaranties  apply  to  such  acts  as  consti- 
tute violations  of  public  and  general  laws.  They  leave  contempta,  which 
are  simply  acts  in  disobedience  of  judicial  mandates  or  process,  or  which 
tend  to  obstruct  the  dignified  and  effective  administration  of  justice,  to  be 
dealt  with  ia  the  summaiy  manner  theretofore  universally  followed.    Upon 


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232 


AMERICAN  CRIMINAL  REPORTS. 


this  question  a  few  of  the  numerous  authorities  are  subjoined:  R\p.,  Con- 
tempt, §g  10,  113;  3  Bish,  «^rim.  Law,  g  368;  Cooley,  Const.  Lini.,  p.  390, 
note  3;  Cooper  v.  People,  supra;  State  v.  Becht,  33  Minn.  41 1 ;  Ex  porfe  Grace, 
supra;  Gaudy  v.  State,  13  Neb.  445;  Arnold  v.  Com.,  80  Ky.  300;  Necl  v. 
State,  9  Arls.  359;  State  v.  Matthews,  37  N.  H.  450.  The  contempt  cliarged 
in  the  present  ease  did  not  consist  in  disobedience  of  some  writ  or  order  fur 
the  benetit  of  a  private  htigant.  Refusal  to  obey  a  conmiand  by  the  grand 
jury  is  the  act  averred,  and  the  contempt,  if  contempt  there  be,  is  therefore 
criminal.  It  follows  tliat  the  judgment  pronounced  was  controlled  by  tiu- 
common  law,  not  by  the  Code  provision.  We  do  not  accept  tl»e  suggestion 
that  courts,  under  like  cii'cumstances,  will,  in  criminal  offenses  of  this  kind, 
adopt  by  analogy  tlie  penalty  provided  by  statute  for  civil  contemjjts.  Tlie 
judgment  being  valid,  we  must  decide  this  branch  of  the  question  pvesenti'd 
against  plaintiff  in  error,  and  contrary  to  our  own  i)reconceived  impres- 
sions. It  can  not  be  denied  that  there  has  been  a  seeming  inconsistency  in 
the  practice  of  our  courts,  whereby  acts  recognized  in  Teller  v.  People, 
«Mpra,  .IS  crimmal,  have  been  adjudicated  under  a  chapter  ivlating  exclu- 
sively to  civil  ciises.  But  the  foregoing  conclusions  justify  this  j)ractice  as  to 
civil  contempts,  and  vindicate  the  usefulness  of  the  statute  in  question;  for, 
though  the  legislature  can  not  take  away  from  courts  created  by  the  con- 
stitution the  iKjwer  to  punish  contempts,  reasonable  regulations  by  that 
body  t<iuching  the  exercise  of  this  power  will  be  regarded  as  binding. 
Hence  the  Code  chapter  is  undoubtedly  valid  as  to  all  civil  contempts. 

3.  We  now  turn  to  the  second  branch  of  the  case.  Did  the  acts  with 
which  Wyatt  is  charged  constitute  a  contempt  of  court  ?  Constructive  con- 
tempts—those  not  committed  in  the  presence  of  the  court — nuist,  of  course, 
in  some  i-egular  and  legitimate  way,  be  brought  to  the  court's  knowledge. 
Until  this  is  done,  the  process  of  attachment  will  not  issue.  In  Pennsylva- 
nia it  is  held  that  "obstructing  a  magistrate  in  the  execution  of  liis  office 
is  an  indictable  offense."  Breaker  v.  Com.,  13  Serg.  &  R.  175.  And  in 
Gandy  v.  State,  supra,  it  is  said  that  such  proceedings  must  be  commencecl 
by  a  sworn  information.  But  the  practice  generally  recognized  throughout 
the  United  States,  and,  according  to  Blackstone,  frequently  followed  in 
England,  is  for  some  proper  official  or  interested  party,  to  set  forth  by  affi- 
davit the  material  facts  relied  on.  A  little  contrariety  of  opinion  exists  as  to 
whether  the  warrant  of  commitment  or  the  order  of  court  must  recite 
the  jurisdictional  facts.  But  the  overwhelming  weight  of  authority  in 
this  country  sustains  the  proposition  that  the  affidavit  upon  which  tlie 
proceedings  for  a  constructive  contempt  is  based  must  state  facts  which, 
if  esUiblishe:!,  would  constitute  the  offense;  and  that,  if  the  allegations  of 
the  affidavit  are  not  sufficient  in  this  resi)ect,  the  coUrt  is  without  jurisdic- 
tion to  proceed.  Rap,,  Contempt,  §§  93,  94,  and  cases  cited;  Muliin  v.  Pto- 
ple,  supra;  Thomas  v.  People,  supra;  Cooper  v.  People,  supra;  Wilson  v. 
Territory,  1  Wyo.  155;  Ex  parte  Peck,  8  Blatchf.  113;  McConnellv.  State, 
46  Ind.  298;  Phillips  v.  Welsh,  12  Nev.  158;  Gandy  v.  State,  sujira;  Batch- 
dderv.  Moore,  42  Cal.  413.  Some  of  the  opinions  above  recited  refer  the 
authority  for  the  affidavit  to  statutes  similar  to  section  332  of  our  Civil 
Code,  But  the  statute  mentioned,  and  others  of  like  tenor,  are  simply  de- 
claratory in  this  particular  of  what  may  fairly  be  termed  the  modem  com- 
nion  law  practice;  and  the  rule  concerning  the  materiality  of  the  affidavit 
Hihould  prevail  to  the  same  extent,  in  tlie  absence  of  statute.    There  ia  now 


STATE  V.  KNIGHT  ET  AL. 


23a 


'0. 

V. 

t'd 
or 

a 


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and  tlicn  a  case,  like  that  of  Ex  parte  Stimviera,  5  Ired.  140,  which  Bcenm 
to  hold  tliat,  in  courts  of  superior  jurisdiction,  the  record  need  not  discloHc 
the  grounds  upon  which  the  contempt  is  adjudged.  But  in  E.v  parte  Suvi- 
mei's,  an  actual,  not  a  constructive,  contempt  was  under  consideration,  atid 
reliance  wtis  placed  mainly  upon  English  decisions.  Besides,  the  justice  of 
hariiig  those  grounds  thus  appear  ia  considered  and  the  practice  strongly 
commeniled. 

The  position  of  those  authorities  which  hold  that,  where  the  contempt  is 
constructive,  the  affidavit  must  show  the  offense,  commends  ituclf  with 
irresistible  force.  A  proper  regard  for  the  liberty  of  the  citizen  forhids  the 
arrest  of  parties  upon  criminal  attachment  charged  with  this  kind  of  con- 
tempts, without  information  under  oath  touching  the  precise  ciiaract«!r  of 
the  alli'{;ed  offenses.  While  the  grand  jury  in  its  deliberations  act«  to  sorn*' 
extent  independently  of  the  court,  it  is  unquestionably  an  adjunct  or  ap- 
pendage thereto.  It  has  no  power  to  adjudge  contempts,  or  to  punish  the 
same.  The  usual  mode  of  procedure,  where  witnesses  refuse  to  testify,  or  tin- 
legitimate  action  of  the  body  is  obstructed,  is,  unless  otherwise  provided  by 
stiitute,  to  re|)ort  the  matter  to  the  court,  and  obtain  an  order  in  the  i)retu- 
ises;  aud  it  is  the  disobedience  of  this  order  that  constitutes  the  contempt. 
In  the  case  at  bar  the  alleged  misconduct  of  Wyatt  was  brought  to  the 
knowledge  of  the  court  through  an  affidavit  filed  by  the  assistant  proHecuting 
attorney,  and  the  subsequent  proceedings  rest  entirely  ujion  the  instrument 
as  a  foundation.  But  it  is  strenuously  urged  that  this  affidavit  utterly  fails 
to  show  any  contempt  on  the  part  of  Wyatt.  We  must  therefore  exuntine 
its  contents.    But  a  preliminary  consideration  first  requires  attention. 

We  .'ire  told  that  grand  juries  can  not  inspect  premises  or  property  wherehi 
or  in  connection  with  which  a  crime  is  alleged  to  have  been  comniitt«Hl. 
The  proposition  is  not  without  force  when  the  action  is  sought  to  bo  taken 
in  connection  with  private  premises,  or  as  to  personal  property  of  non-con- 
seutuij;  private  individuals.  The  ofUcial  deliberations  of  the  grand  jury 
take  place  in  the  room  or  quarters  provided  for  the  purpose.  Its  action 
almost  always  rests  upon  the  testimony  of  witnesses,  and  papers  and  docu- 
ments produced  before  it  in  response  to  subpoenas.  It  is  very  rare,  indeed, 
that  it  desires  as  a  body  to  examine  the  8itua  of  an  alleged  criminal  offense. 
Aud  it  i»  exceedingly  difficult  to  find  judicial  declarations  eitht^r  admitting 
or  denying  its  power  of  inspection,  in  the  absence  of  statute.  But  ciwch 
may  aris(>  wherein  such  inspection  would  greatly  assist  its  invcHtigatlonH, 
and  we  are  not  prepared  to  deny  the  authority  of  courts  to  permit  them, 
under  proper  limitations.  Some  analogy  may  be  said  to  exist  m  this  re- 
gard between  the  action  of  grand  and  petit  jurors,  though  tlie  larger  low- 
ers and  gi'eater  independence  of  the  former  render  this  analogy  imperfectt. 
lns{x;etion  by  the  latter  during  the  progress  of  trials,  under  projior  circum- 
stances and  limitations,  is  now  frequently  permitted  in  civil  cases,  and  tlut 
authority  therefore  is  often  declared  by  statute.  But  we  are  strongly  of 
the  opinion  that  the  grand  jury  has  no  more  right  to  visit  premises  for  the 
puri)ose  of  official  inspection  upon  its  own  motion  than  the  petit  jury.  Such 
proceedings,  beuig  unusual  and  extraordinary,  must,  unk^ss  otherwise  pro- 
vided by  statute,  firet  have  the  sanction  of  the  court;  and  as  a  matter  of 
course,  there  nmst  be  a  careful  compliance  with  the  limitations  and  regula- 
tions prescribed  in  the  order.  The  crime  under  investigation  by  the  grand 
jury,  and  thus  connected  with  the  case  at  bar,  involved  property  belonging 


"T^ 


234 


AMERICAN  CRIMINAL  REPORTS. 


iir- 


JfWUl 


'  r. 


to  the  State;  and,  in  our  judgment,  the  State,  through  its  reguhirly  author- 
ized tribunal,  had  the  undoubted  riglit  to  inquire  into  the  circunistuncoB 
relating  thereto. 

We  ai-e  etjually  certain,  however,  of  the  correctness  of  the  proposition 
already,  in  effect,  suggested,  that  the  grand  jury  had  no  authority  what- 
ever to  demand  an  inspection  of  the  premises  or  property  upon  its  own  mo- 
tion. An  order  of  court  was  an  essential  condition  precedent.  Wyatt 
could  not  be  in  contempt  for  disobeying  a  command  which  the  grand 
jury  had  no  right  to  give  or  power  to  enforce.  It  was  essontial,  tiiL-re- 
fore,  to  the  cause  of  action  against  him,  that  the  affidavit  presL-nted  aa 
its  fopndation  should  show  both  the  existence  of  such  an  order  of 
court  and  his  disobedience  thereof.  But  the  affidavit  beforo  us  is  silent 
in  these  respects.  It  does  not  show  that  the  grand  jury  obtained  permission 
of  the  court  to  inspect  the  property,  or  that  any  order  whatever  was  ent(>re(l 
by  the  court  commanding  Wyatt  t/.  permit  such  inspection.  Nor  diH-s  it 
state  any  fact  tending  to  show  that  Wyatt  ever  disobeyed  an  order  of 
court.  It  does  not  specify  the  nature  or  grade  of  tlie  offense  under  investi- 
gation by  tlie  grand  jury,  or  even  assert  that  the  inspection  was  sought  in 
connection  with  a  criminal  charge.  For  aught  appearing  in  this  aihdavit. 
the  grand  jurors  might  have  been  endeavoring  to  view  the  i)roperty  tor  the 
purix)se  of  gratifying  their  idle  curiosity.  It  is  impossible  to  nuid  the  in- 
strument without  receiving  the  impression  that  its  autiior  regarded  Wyatt's 
refusal  to  obey  the  demands  of  the  foreman  aa  constituting  a  contempt 
subjecting  l»im  to  punishment  by  the  court 

It  is  not  necessary  to  consider  whether  this  jurisdictional  defect  could  he 
waived,  or  could  be  cured  by  answer  or  other  subsequent  proceeding;  for 
certain  it  is  that  such  waiver  or  correction  did  not  here  take  place.  The 
judgment,  it  is  true,  says  that  an  order  of  court  was  disobeyed,  and  also 
that  the  grand  jury  was  investigating  a  criminal  offense.  But  this  judg- 
ment was  rendered  upon  tiie  pleadings,  wherein  no  such  order  or  its  dis- 
obedience was  alleged  or  admitted.  The  motion  to  quash  the  attachment 
expressly  specified,  as  a  distinct  ground,  that  "  a  view  and  inspection  of 
said  property  by  said  grand  jury  has  never  been  ordered  by  this  court,  or 
anj'  other  court  of  competent  jurisdiction,  and  such  view  and  inspection 
is  beyond  the  power  and  jurisdiction  of  said  grand  jury."  This  motion  be- 
ing overruled,  Wj'att  filed  an  answer,  which  a^  erred,  inter  alia,  that  the 
grand  jury  had  never  been  directed  by  the  court  to  inspect  the  property, 
and  without  such  direction  or  order  possessed  no  jurisdiction  to  do  so;  also, 
that  the  grand  jurj'  was  not  considering  any  charge  warranting  investiga- 
tion, and  that  the  attachment  proceeding  was  not  based  upon  any  official 
action  of  that  body  in  reporting  facts  to  the  court.  Nowhere  in  the  mo- 
tion to  quash  or  in  the  answer  do  we  find  any  admission  that  an  order  of 
court  in  the  premises  was  made  or  disobeyed.  There  is  al>solutely  notii- 
ing  in  the  record,  save  the  judgment,  intimating  the  existence  of  tliis  order. 
To  say  that  such  recitals  in  the  judgment  are  sufficient  would  be  to  nullify 
all  attempts  by  appellate  tribunals  to  inquire  into  the  jurisdiction  of  the 
court  pronouncing  the  same.  It  would  be  to  make  that  court  the  sole  arbi- 
ter as  to  what  does  or  does  not  constitute  a  contempt  and  render  the  judg- 
ment itself  conclusive  of  this  jurisdictional  question. 

This  opinion  deals  with  an  alleged  constructive  contempt.    In  view  of  its 
bearing  upon  the  contempt  chapter  in  the  Civil  Code,  we  deem  it  proiRr, 


m 


LINDEN  PARK  BLOOD  HORSE  ASSN  v.  STATE. 


235 


lu)W('vc'r.  to  add  a  word  with  reference  to  "actual"  contempts— those  com- 
inittfil  in  the  presence  of  the  court.  Wliether  the  common  law  requires  . 
that  tlie  ordtsrs  of  court  in  this  class  of  contempts  shall  recite  the  facts,  it 
would  ol)viou8ly  bo  improper  for  us  now  to  determine.  But  whatever  may 
be  tlie  common-law  rule,  a  due  regard  for  the  rights  of  the  accused, 
strongly  sanctions  the  propriety  of  such  a  course,  and  the  proceeding  would 
certainly  not  be  vitiated  thereby.  We  suggest  the  wisdom  of  a  substantial 
c()iiii>liance  with  the  provision,  in  this  respect,  of  section  322  of  the  Civil 
Code,  though  the  contempt  be  criminal,  and  therefore  not  within  its  pur- 
view. 

Right  to  trial  by  jury  not  involved  in  contempt  proceedings. — The  consti- 
tutional provision  that  "  the  right  of  trial  by  jury  shall  remain  inviolate" 
lias  no  application  to  a  summary  proceeding  of  this  character.  Such  guar- 
anty doi's  not  extend  beyond  the  cases  where  such  right  existed  at  common 
law.  The  provision  is  that  the  right  "  shall  remain  inviolate."  The  right 
of  a  court  to  punish  for  contempt,  without  the  intervention  of  a  jury,  was 
a  well  established  rule  of  the  common  law.  In  Eilenbecker  v.  Plymouth 
Co.  Dist.  Ct.,  134  U.  S.  31,  the  court  says:  "  If  it  has  ever  been  understood 
that  pnjteedings  according  to  the  common  law  for  contempt  of  court  have 
been  suliject  to  the  right  of  trial  by  jury,  we  have  been  unable  to  find  any 
instance  of  it."  See,  also.  State  v.  Becht,  23  Minn.  411;  McDonnell  v.  Hen- 
derson. 74  Iowa,  619;  State  v.  Doty,  32  N.  J.  Law,  403;  State  v.  Matthews, 
37  N.  H.  4.50;  State  v.  Durein,  46  Kan.  695;  Oandy  v.  State,  13  Neb.  44.'i; 
State  v.  Mitchell,  3  S.  D.  223.  For  further  and  fuller  discussion  of  this 
jwint  see  ..-IrnoW  v.  Com.,  80  Ky.  300;  King  v.  Ry.  Co.,  7  Biss.  529;  Neelv. 
State,  9  Ark.  2.59;  Croiv  v.  State,  24  Tex.  12;  Hart  v.  Rohinett,  5  Mo.  11; 
Eikeuburry  v.  Edwards,  67  Iowa,  619;  Rap.  Contempt,  §  112;  3  Amer.  & 
Eng.  Enc.  Law,  719. 


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Linden  Park  Blood  Horse  Ass'n  v.  State. 
(55  N.  J.  L,  557.) 

Dis©RDERLY  House:    Indictment  and  verdict— Variance. 

1.  An  indictment  charges  the  keeping  a  disorderly  house,  setting  out  the 

causes  of  disorder.  Among  such  causes,  gaming  was  not  included. 
Held,  the  defendant  in  such  a  charge  could  not  be  convicted  of  keeping 
a  common  gaming  house. 

2.  Spi'citications  of  the  characteristics  of  the  house  in  point  of  disorder  are 

)n.itters  of  description,  and  a  case  must  be  proved  to  answer  to  them, 
or  some  of  them. 

Error  to  Supreme  Court. 

Cortlandt  <&  R.  W.  Parlcer,  for  plaintiff  in  error. 
IL  V.  Lindabury,  for  tlie  State. 


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23G 


AMERICAN  CRIMINAL  REPORTS. 


The  opinion  of  the  Court  was  delivered  bjr 

Beasley,  C.  J.  The  indictment  in  this  case  charged  as  fol- 
lows, viz.:  That  the  defendant  "unlawfully  did  keep  and 
maintain  a  certain  common,  ill-governed,  and  disorderl}'  house: 
and  in  the  said  house,  for  its  own  lucre  and  gain,  certain  ])er- 
sons,  as  well  men  as  women,  of  evil  name  and  fame  and  of  dis- 
honest conversation,  then,  and  on  the  said  otherdays  and  times, 
there  unlawfully  and  wilfully  did  cause  and  procure  to  fre- 
quent and  come  together.  And  the  said  men  and  women  in  the 
said  house  of  it,  the  said  The  Linden  Park  Blood  Horse  Asso- 
ciation, at  unlawful  times,  as  well  in  the  night  as  in  the  day. 
then  and  on  the  said  other  days  and  times,  there  to  be  and  re- 
main, drinking,  tippling,  fighting,  whoring,  and  misbehaving 
themselves,  unlawfully  and  wilfully  did  permit,  and  yet  does 
permit,"  etc. 

At  the  trial  under  this  indictment  the  defendant  was  con- 
victed of  the  offense  of  keeping  a  common  gaming  house — an 
otfense,  it  will  be  observed,  that  is  not  among  the  specifications 
of  misconduct  that  were  alleged  to  have  made  the  house  of  the 
defendant  a  disorderly  one.  The  only  disorder  proved,  or  at- 
tempted to  be  proved,  to  the  jury,  was  the  prevalence  of  habit- 
ual gambling  on  the  premises  of  the  defendant. 

The  only  question  to  be  considered  is  whether,  under  such  an 
indictment  as  the  one  present  upon  this  record,  such  proof  and 
the  ensuing  conviction  were  legiti  mate . 

The  crucial  test  of  the  inquiry  obviously  is  whether  thesjiec- 
ifications  of  the  acts  that  constitute  the  house  a  disorderly  one 
are  necessary  parts  of  the  charge.  That  they  are  such  is 
demonstrably  clear.  No  one  with  any  knowledge  of  law  would 
say  that  a  general  charge  of  keeping  a  disorderly  house,  with- 
out any  indication  of  the  circumstances  that  make  it  sucli, 
would  satisfy  the  legal  rule  of  criminal  pleading.  As  well 
allege  that  a  man  committed,  without  further  descrijition,  a 
larceny,  as  to  charge,  in  the  same  uncircumstantial  fashion, 
that  a  man  kept  a  disorderly  house. 

It  is  the  primary  rule  respecting  indictments  that  the}'  should 
be  framed  with  sufficient  certainty.  "  For  this  purpose  [the 
language  is  that  of  Chitty]  the  charge  must  contain  a  certain 
description  of  the  crime  of  which  the  defendant  is  accused, 
and  a  statement  of  the  facts  bv  which  it  is  constituted,  so  as  to 
identify  the  accusation,  lest  the  grand  jury  should  find  a  bill 
for  one  offense,  and  the  defendant  be  put  upon  his  trial  in  chief 


LINDEN  PARK  BLOOD  HORSE  ASS'N  v.  STATE. 


237 


for  another,  without  any  authority."  "  Such  statement  of  facts 
is  essential,"  the  author  further  remarks,  "  in  order  that  the 
(It'fendant's  conviction  or  acquittal  may  insure  his  subsequent 
protection  should  he  be  again  questioned  on  the  same  ground, 
and  that  he  may  be  enabled  to  plead  his  previous  conviction  or 
acquittal  of  the  same  offense,  in  bar  of  any  subsequent  pro- 
ceedin<i's." 

With  respect  to  the  class  of  cases  now  before  the  court  it  is 
ol)vious  that  both  of  the  safeguards  above  designated  (of  the 
rule  thus  stated)  will  not  exist  unless  there  be  a  specification 
of  the  wrongdoings  of  the  culprit  whereby  his  house  is  made  a 
(iislionorable  one.  By  the  constitution  of  our  state  no  person 
can  be  lield  to  answer  for  a  criminal  offense  "  unless  upon  the 
presentment  or  indictment  of  a  grand  jury;"  and  in  order  to 
efTectuate  this  provision  it  is  indispensable  that  the  charge 
))referred  by  that  body  should  be  sufficiently  descriptive,  so  as 
to  clearly  show  a  specific  crimination.  In  all  the  forms  of 
criminal  pleading  founded  on  the  common  law,  probably  not 
one  can  be  found  which  omits  to  set  forth,  in  exjjlanation  of 
the  general  charge  of  keeping  a  disorderly  house,  a  descri])tion 
of  the  habitual  misconduct  that  justifies  such  characterization 
of  the  house  itself.  An  indictment  laying  to  the  defendant  the 
ciiarge  of  keeping  a  disorderly  house,  by  reason  of  it  being 
ke])t  as  a  bawdyhouse,  would  not  evince  the  purpose  of  the 
grand  inquest  to  criminate  him  on  the  ground  that  his  house 
was  disorderly  from  the  circumstance  that  liquor  was  habitu- 
ally sold  in  it  in  violation  of  law.  Where,  therefore,  in  the  in- 
stance before  us,  the  grand  jury  has  specified  certain  courses  of 
criminal  conduct  as  those  that  have  rendered  the  defendant's 
hoiiso  a  common  nuisance,  and  among  such  causes  has  omitted 
the  practice  of  gambling,  it  is  not  perceived  how  it  can  be  said 
that  the  criminal  otfense  of  keeping  a  public  gaming  house,  of 
which  the  defendant  has  been  convicted,  is  founded,  as  the 
constitution  requires,  upon  an  accusation  of  the  grand  inquest. 

Nor  would  a  defendant,  if  such  a  conviction  as  has  obtained 
in  this  case  is  to  stand,  be  possessed  of  the  second  of  the  safe- 
guards, that  the  rule  requiring,  according  to  Chitty,  a  certain 
description  of  the  crime  charged  to  be  contained  in  the  indict- 
ment. If  he  were  indicted  in  the  future  for  keeping  a  gaming 
house,  it  is  difficult  to  see  how  he  could  plead  in  answer  to 
such  an  accusation  his  present  conviction.    Such  a  plea  would 


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238 


AMERICAN  CRIMINAL  REPORTS. 


be  contriulicted  by  the  record  before  us,  for  it  would  show 
upon  its  face,  that  the  second  indictment  was  for  an  olfensc 
not  charged  in  the  first.  Nor  could  such  a  showinpf  be  contra- 
dicted by  parol,  for  this  would  be  to  falsify  the  record  itself. 
The  rule  of  the  law  and  of  common  justice  is  that  the  offense 
must  be  charged  in  the  indictment  in  a  certain  and  identiilalilc 
form,  and  this  principle  is  so  essential  to  the  personal  security 
of  the  citizen  that  it  is  not  to  be  impaired,  no  matter  how  great 
the  particular  exigency  may  be. 

Before  closing  the  inquiry,  it  may  be  well  to  remark  that  tho 
only  theory  on  which  a  result  opposite  to  the  one  just  indicated 
could  rest  would  be  the  principle  that  it  would  besuilicient  to 
insert  a  general  charge  in  an  indictment  that  the  defendant 
had  kept  a  disorderly  house,  without  stating  the  circumstances 
that  had  made  it  such.  With  respect  to  such  a  position,  it  has 
been  said  that  it  is  presumed  that  no  person  conversant  witii 
the  law  would  venture  to  assume  it;  but,  be  this  as  it  may,  it 
would  seem  to  be  still  more  abnormal  to  predicate  that,  when 
a  description  was  in  point  of  fact  appended  to  such  general 
charge  so  as  to  particularize  it,  thereby  such  general  charge 
would  not  become  specific.  This  would  be  conspicuously  con- 
trary to  a  legal  principle  that  no  one  has  ever  doubted — that 
is,  that  a  descrii)tion  of  an  essential  fact  in  an  indictment  be- 
comes itself  an  essential.  If  a  man  be  indicted  for  the  theft  of 
a  white  horse,  he  can  not  be  convicted  of  the  larcenv  of  a  hors(^ 
of  a  different  color.  The  adjective  "  white  "  was  not  neces- 
sary to  the  formality  of  the  charge,  but  being  introduced,  and 
being  descriptive  of  the  subject  of  the  crime,  the  stolen  animal 
must  correspond  to  the  specification.  So  that  in  the  present 
case,  as  the  disorderly  house  in  question  has  been  described,  the 
defendant  could  not  lawfully  be  convicted  of  the  keeping  of 
any  house  not  answering  such  description.  This  is  but  saying, 
in  effect,  that  when  the  grand  jury  prefer  an  accusation  that 
the  culprit  has  kept  a  tippling  house  he  can  not,  in  such  an  in- 
dictment, be  tried  for  keeping  of  a  gaming  house. 

There  is  no  legal  ground  on  which  the  present  conviction  can 
stand.    The  judgment,  therefore,  must  be  reversed. 

TSo'm.— Disorderly  house— What  constitutes.— KviAencQ  to  the  effect  that 
the  defendant  lived  a  quiet,  peaceable  life,  and  that  there  was  no  noise  or 
disturbance  in  his  house  may  be  true,  and  yet  the  house  be  "  disorderly  '"  in 
the  meaning  of  the  law.    A  house  of  assignation  or  prostitution  is  within 


THE  qub:en  v.  tankard. 


23!> 


the  act,  however  quietly  and  peaceably  it  may  be  kept.  Syltrsti'v  v.  State. 
1  Am.  Cr.R.  !W);  42  Tex.  4tt6.  For  an  extended  citation  of  authorities  under 
this  heiul.  see  8  Am.  Cr.  Rep.  179-181 . 

Wlidt  in  mJ<.— Where  only  one  woman  occupied  a  house  and  received  nun 
for  till-  i>uri)oae  of  committing  fornication  with  her,  and  no  other  women 
lived  in  the  house  or  fre<iuented  it  for  purposes  of  prostitution,  she  had  not 
committed  tiie  offense  of  keeping  a  brothel.  Singleton  v.  EUimn  (1805),  1 
L.  R.  (Q.  I^.  D.)  607.  For  other  citations  in  oth<'r  cases  under  this  head,  see 
8Am.  Cr.  R.  181. 

DefcndaiiVs  knowledge. — The  law  requires  defendant  to  he  reasonably 
diligent  in  ascertaining  the  character  of  the  persons  he  employs,  and  all  the 
stnte  is  recjuired  to  do  is  to  show  facts  that  would  put  areasoiiahle  man  on 
notice.    Johnson  v.  Stnte,  33  Tex.  Cr.  R.  504;  Oraeterv.  Stnte,  105  Ind.  271. 

Ei'idciiee  of  the  offense. — For  numerous  and  valuable  citations,  see  8  Am. 
Cr.  R.  182,  183. 

Evidence  of  reputation.— ^e\mi9.t\on,  accompanied  with  other  evidence 
showing  tliat  the  house  has  actually  been  resorted  to  for  the  puriKise  of  pros- 
titution, is  admissible,  as  tending  to  establish  the  offense.  State  v.  Went,  4« 
La.  Ann.  1009;  State  v.  Mnck,  41  La.  Ann.  1081;  Drake  v.  Stnte,  14  Neb. 
.') 35:  Wood,  NuLs,  p.  40.  "  Mere  reputation  is  not  sufficient,  for  that  is  often 
wholly  unreliable  and  unworthy  of  credence;  but  when  accompanied  with 
evidence  showing  the  dissolute  character  of  the  inmates,  and  of  the  persons 
visiting  there,  it  is  admissible  as  tending  to  establish  the  offense."  Wood, 
Nui.s.,  p.  50,  )^  29.  In  Dillon  it  is  stated  that  "  common  reputation  as  to  the 
character  of  the  defendants,  and  of  the  houses  which  they  keep  is  admis- 
sible." 1  Dill.  Mun.  Corp.  (4th  Ed.),  p.  452,  note  1.  Also  State  v.  Bonrdman, 
64  Me.  523;  1  Am.  Cr.  R.  351;  Sylvester  v.  State,  42  Tex.  496;  1  Am.  Cr,  R. 
350;  Territory  v.  Stone,  2  Dak.  155. 

Indictment  and  information. — An  indictment  alleging  that  defendant 
"  was  the  owner  *  *  *  of  a  certain  house  *  *  *  and  did  then  and 
there  knowingly  permit  the  keeping  in  said  house  of  a  disorderly  house,  to 
wit,  a  house  kept  for  prostitution,  and  where  prostitutes  were  permitted  to 
recort  and  reside  for  the  purpose  of  plying  their  vocation,"  is  sufficient. 
ManHjicld  v.  State,  24  S.  W.901.  Proving  matter  of  description,  a  necessity 
waen.    Statu  v.  Dame,  60  N.  H.  479;  4  Am.  Cr.  R.  444. 


(Crown  Case  Eeserved.) 

The  Queen  v.  Tankard. 

(1  L.  R.,  Q.  B.  Div.  (1894)  548.) 

Embezzlement:  Illegal  association— Property— Beneficial  oumers—31  and 
S2  Vict.  116,  a.  1— Companies  Act,  1862  {25 and  26  Vict,  c.  89),  a.  4. 

The  defendant  was  convicted  on  an  indictment,  drawn  under  31  and  32 
Vict.  c.  116,  8.  1,  and  charging  him  with  having,  whilst  one  of  a 
number  of  beneficial  owners  consisting  of  himself,  J.,  and  others,  em- 
bezzled money  belonging  to  such  beneficial  owners.  It  was  proved  at 
tlie  trial  that  the  prisoner  was  the  treasurer  and  a  member  of  a  trading 


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240  AMERICAN  CMMINAL  REPORTS. 

club,  whicli  wns  an  unroRlstered  nsRociation  of  more  tlinn  twonty  por- 
sons  Hiich  nfl  is  proliibitt'd  from  being  formed  by  b.  4  of  tbe  Coiiiiiiiiiits 
Act,  180a.  und  timt  he  received  money  belonKing  to  tiie  jwsociatiou  and 
faileil  to  pay  over  or  accoimt  for  it:  Held,  that  the  priHonur  wua  prop- 
erly convicted. 

Case  reserved  by  the  Recorder  of  Bradford. 

The  prisoner,  Michael  Naylor  Tankard,  was  tried  at  the 
Bradford  Quarter  Sessions,  held  on  October  20,  1SJ>.3,  for  tiiat 
he  on,  etc.,  "being  then  one  of  a  number  of  beneficial  owners 
called  the  Bowling  Feast  Club,  consisting  of  the  said  M.  iN. 
Tankard,  W.  K.  Jackson,  and  others,  did  then,  and  whilst  lie 
was  one  of  such  beneficial  owners  as  aforesaid,  receive  ami 
take  into  his  possession  certain  money  to  the  amount,  etc.,  for 
and  in  the  name  of  and  on  account  of  the  said  beneficial  own- 
ers, and  the  said  money  then  fraudulently  and  feloniously  did 
embezzle;  and  so  the  jurors,  etc.,  do  say  that  the  said  M.  N. 
Tankard  then  in  manner  and  form  aforesaid  the  said  money, 
the  property  of  the  said  beneficial  o^.ners  as  aforesaid,  fruni 
the  said  beneficial  owners  as  aforesaid  feloniously  did  steal. 
take  and  carry  away  contrary  to  the  statute,"  etc. 

The  indictment  was  drawn  under  31  and  32  Vict.  c.  110,  s.  1. 
which  enacts  that  "  if  any  person,  being  a  member  of  any 
co-partnership,  or  being  one  of  two  or  more  beneficial  owners 
of  any  mone}*^ — shall  steal  or  embezzle  such  money — every 
such  person  shall  be  liable  to  be  tried,  convicted,  and  pun- 
ished for  the  same  as  if  such  person  had  not  been  or  was  not 
a  member  of  such  co-partnership,  or  one  of  such  beneficial 
owners." 

It  was  proved  that  the  prisoner,  W.  K.  Jackson,  and  about 
twenty-eight  other  persons,  were  the  members  of  and  consti- 
tuted the  Bowling  Feast  Club  mentioned  in  the  indictment, 
the  prisoner  being  the  treasurer  of  the  club.  The  club  traded 
with  its  members  in  coal  and  cloth,  from  which  trading  profits 
were  made.  Profits  were  also  derived  from  fines  and  interest 
on  loans  paid  by  the  members,  and  the  whole  of  the  proceeds 
of  the  club,  consisting  of  such  profits  and  subscriptions,  were 
divided  equally  among  all  the  members  at  a  fixed  date  in  each 
year.  The  prisoner  failed  to  produce  or  account  for  such 
moneys,  mentioned  in  the  indictment,  which  he  had  received 
on  account  of  the  club,  and  for  which  he  was  accountable 
under  the  rules  of  the  club.    The  club  was  not  registered  as 


THE  QUEEN  v.  TANICVRD. 


2-H 


a  compnny  under  the  Companies  Act,  1802  (25  and  20  Vict.  c. 
80),  or  formed  in  pursuance  of  any  other  Act  of  Tarliament, 
or  of  letters  patent.  The  prisoner  was  convicted,  and  sen- 
tenced to  a  term  of  imprisonment. 

The  question  for  the  opinion  of  the  court  was  whether  ho 
was  proj)erly  convicted  on  the  indictment. 

T.  R.  D.  Wright^  for  the  prisoner.  The  conviction  is  bad, 
because  tlie  evidence  established  that  the  Bowling  Feast  Club 
was  an  illegal  association  within  s.  4  of  the  Companies  Act, 
1802  (25  and  20  Vict.  c.  89),  which  enacts  that  '*  No  company, 
assocliition  or  partnership  consisting  of  more  than  twenty 
persons  shall  be  formed,  after  the  commencement  of  this  Act, 
for  the  purpose  of  carr3'ing  on  any  business  (other  than 
hanking)  that  has  for  its  object  the  acquisition  of  gain,  unless 
it  is  registered  as  a  company  under  the  Act,  or  formed  in  pur- 
suance of  some  other  Act  or  of  letters  patent,  or  is  a  company 
engaged  in  working  mines  within  the  jurisdiction  of  the  Stan- 
naries." This  association,  therefore,  was  incapable  of  hold- 
ing property,  or  entering  into  valid  contracts  in  respect  of  it. 
The  incapacity  has  been  established  in  civil  actions  :  Jennings 
V,  Ilammondy  9  Q.  B.  D.  226;  8haw  v.  Benson,  11  Q.  B.  D. 
503;  In  re  Pudstow  Total  Loss  and  Collision  Assurance  Asso- 
ciation, 30  Ch.  D.  137.  If  the  property  had  been  laid  in  the 
indictment  as  tlie  property  of  "  The  Bowling  Feast  Club,"  it 
would  be  the  same  thing  as  if  it  had  not  been  laid  in  any  one, 
and  the  difficulty  was  not  got  over  by  laying  it  as  the  prop- 
erty of  the  prisoner,  W.  K.  Jackson,  and  others,  when  once 
the  evidence  established  that  it  was  really  the  property  of  an 
illegal  association.  Reg.  v.  Stainer,  39  L.  J.  (M.  C.)  54,  is  not  an 
authority  against  this  contention.  The  decision  only  was  that 
a  society  in  the  nature  of  a  trade  union  could  prosecute  its 
servants  for  embezzlement,  notwithstanding  that  some  of  the 
society's  rules  were  void  as  being  in  restraint  of  trade.  In 
Reg.  V.  Hunt,  8  C.  and  P.  642,  it  was  held  that  the  clerk  of  an 
association  made  criminal  by  statute  could  not  be  convicted 
of  embezzling  the  money  of  the  association.  It  is  no  answer 
to  the  objection  to  say  that,  if  it  be  well  founded,  the  prop- 
erty of  the  association  could  be  lawfully  taken  by  anybody 
who  could  get  it,  and  that  such  a  result  is  an  absurdity.     In 

Reg.  V.  Rohson,  16  Q.  B.  D.  137,  a  member  of  an  association,  hav- 
16 


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242 


AMERICAN  CRIMINAL  REPORTS. 


ing  for  its  object,  not  the  acquisition  of  gain,  but  "  The  spirit- 
ual and  mental  improvement  of  its  members,"  was  held  not  to 
be  a  member  of  a  "copartnership,"  V/ithin  31  and  32  Vict.,  c. 
116,  8.  1,  and  therefore  not  liable  to  be  convicted  of  embezzlino- 
the  moneys  of  the  copartnership.  It  followed  there  that  any 
member  could  steal  or  embezzle  the  property  of  the  association 
without  being  liable  to  be  convicted.  Hex  v.  Bon! ton,  .5  C.  and 
P.  537,  does  not  apply  to  the  present  case.  The  Companies  Act 
1862,  deprives  such  an  association  as  this  of  any  legal  exist- 
ence. Therefore,  when  the  property  passed  to  the  prisoner  no 
civil  proceedings  could  be  brought  against  him  in  respect  of  it; 
and,  it  is  contended,  no  criminal  proceedings. 

Walter  Beverly,  for  the  Crown,  was  not  heard. 

LoKD  CoLEBiDOE,  C.  J.  The  indictment  in  this  case  is  drawn 
under  31  and  32  Vict.,  c.  116,  s.  1,  which  is  in  these  terms: 
(His  Lordship  read  s.  1.)  It  would  almost  seem  as  if  the  enact- 
ment was  for  the  very  purpose  of  sweeping  away  such  an  objec- 
tion as  has  been  taAcen  here.  There  are  a  number  of  persons 
who  join  themselves  togel  her,  not  for  any  criminal  purpose,  but 
their  joining  together  is  not  legalized.  It  is  true  that  they 
have  no  legal  existence  as  a  company,  association  or  copart- 
nership, but  they  are  none  the  less  beneficial  owners  of  pro])- 
erty.  In  the  indictment,  the  property  was  properly  laid  in 
the  prisoner,  W.  K.  Jackson  and  others  as  beneficial  owners. 
It  does  not  follow  that  because  the  club  had  no  legal  existence 
as  a  company,  association  or  copartnership,  the  members  had 
no  legal  existence  as  beneficial  owners  of  property.  It  is 
untrue  to  say  that  they  are  not  beneficial  owners  in  fact.  It 
has  been  decided  in  Reg.  v.  Stainer,  39  L.  J.  (M.  C.)  54,  before 
trade  unions  were  legalized,  that  where  the  property  was 
laid  in  an  association  in  the  nature  of  a  trade  union,  it  did  not 
follow  that  a  person  could  not  be  convicted  of  stealing  or 
embezzling  their  property,  because  the  association  did  not  in 
all  respects  conform  to  the  law,  and  the  grounds  of  that  decis- 
ion apply  here.  It  seems  to  me  that  the  case  for  the  prisoner 
is  gone  the  moment  his  counsel  is  obliged  to  admit,  that  if 
his  contention  be  good,  the  property  belonged  to  nobody,  and 
could,  so  to  speak,  be  scrambled  for.  Tt  would  be  a  very 
strong  thing  to  hold  that  an  association,  not  expressly  sanc- 


|iy.:; 


STATE  V.  TROLSON. 


243 


tioned  by  law,  yet  not  criminal,  is  incapable  of  holding  any 
property  at  all. 
I  am  of  opinion  that  the  conviction  should  be  affirmed. 

Mathew,  J.  I  am  of  the  same  opinion.  I  think  that  the 
persons  who  framed  s.  1.,  of  31  and  32  Vict.  c.  116,  did  it  for 
the  purpose  of  meeting  such  cases  as  this.  The  members  of 
the  club  were  clearly  "  beneficial  owners"  within  the  mean- 
ins  of  the  section. 

Grantham,  J.  I  am  of  the  same  opinion.  The  Statute,  31 
and  32  Vict.,  o.  116,  to  my  mind,  is  conclusive. 

Lawranck  and  Collins,  JJ.,  concurred. 

Conviction  affirmed. 

J/.  B.  Nexccll,  Bradford,  solicitor  for  the  prisoner. 
Solicitor  for  tJie  Treasury,  solicitor  for  the  Crown. 


State  v.  Trolson. 

(31  Nev.  419.) 

Embezzlement:  Indictment— Evidence—Statutes — Amendment  of. 

1.  Under  St.  1887,  p.  81,  providing  that  any  person  to  whom  any  money, 

property  or  eflfects  shall  have  been  intrusted,  who  shall  appropriate 
the  same,  or  any  part  thereof,  in  any  manner,  or  for  any  other  puriwse 
than  that  for  which  the  same  was  intrusted,  shall  be  guilty  of  embezzle- 
ment, an  indictment  need  not  allege  that  defendant  appropriated  the 
property  wilfully,  feloniously,  or  with  intent  to  steal,  as  the  offense  is 
complete  when  the  appropriation  is  made,  though  he  intended  to  after- 
ward replace  the  property  taken. 

2.  St.  1887,  p.  81,  is  entitleil  "  An  act  to  further  define  and  punish  embez- 

zlement." Section  1  defines  embezzlement,  and  section  2  fixes  the 
punishment  for  a  violation  of  section  1.  Held,  that  as  the  act  is  com- 
plete within  itself,  and  does  not  conflict  with  Gen.  St.,  Sees.  4634,  463.5. 
also  relating  to  embezzlement  and  its  punishments,  it  does  not  amend 
the  former  statute,  and  hence  does  not  violate  Const,  Art.  4,  §  17, 
requiring  each  law  to  embrace  but  one  subject,  which  shall  be  expressed 
in  the  title,  and  that  no  law  shall  be  revived  or  amended  by  reference 
to  its  title  only. 

3.  On  the  trial  of  an  indictment  charging  defendant  with  the  embezzlement 


;-|i  l.v;,; 


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AMERICAN  CRIMINAL  REPORTS, 


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of  certain  money  received  as  agent  of  an  express  company  for  trans- 
mlHsion.  the  fact  that  the  money  so  received  was  in  the  safe,  consti- 
tutes no  'lefense,  where  defendant  was  sliort  in  his  accounts  with 
the  company  in  an  amount  larger  than  that  alleged  to  have  bt' eii 
embezzled. 

Appeal  from  District  C'ourt,  Storey  Count}';  Eichard  Ris- 
ing, Judge. 

John  Trolson  was  convicted  of  embezzlement,  and  appeals. 
Affirmed. 

f.  Jiedd]/,  for  appellant. 

J.  D.  Torreyson,  Attorney-General,  and  William  Woodhurn, 
for  the  State. 

Mlrpiiy,  C.  J,  The  defendant  was  indicted  and  charged 
with  having  embezzled  the  sum  of  Sl>S77.55,  money  he  had 
received  as  agent  of  Wells,  Fargo  &  Co.,  at  Virginia  City. 
Storey  county,  Nev.,  from  one  John  McGrath,  to  be  by  tho 
said  John  Trolson,  as  such  agent  of  Wells,  Fargo  «fe  Co.,  for- 
warded to  Richard  Mercer,  at  Los  Angeles,  State  of  California; 
that  instead  of  forwarding  the  same,  as  was  his  duty  so  to  do, 
by  the  nature  of  his  employment,  he  appropriated  the  said 
sum  of  money  to  his  own  use.  He  was  tried,  convicted  and 
sentenced  to  imprisonment  in  the  state's  prison  for  five  years. 

Errors  are  alleged  in  this  court,  for  the  first  time,  on  motion 
in  arrest  of  judgment.  It  is  contended  that  the  indictment  is 
deficient  in  matters  of  substance,  in  not  charging  that  tlie 
defendant  appropriated  the  money,  "  wilfully,  feloniously  and 
with  intent  to  steal  the  same."  Neither  one  of  these  words  is 
used  in  the  indictment.  It  is  not  disputed  but  what  tho 
agency  is  sufficiently  alleged,  and  that  he  received  the  money 
as  such  agent  of  Wells,  Fargo  &  Co.,  and  in  the  regular  course 
of  his  employment,  and  that  it  had  never  bocm  sent  by  Trol- 
son to  the  party  for  whom  it  was  intended.  The  charging 
portion  of  the  indictment  complained  of  reads  as  follows: 
"  That  on  or  about  the  said  first  da}'^  of  December,  A.  D,  1802, 
and  before  the  finding  of  this  indictment,  the  said  John  Trol- 
son, having  said  money  and  coins,  and  each  of  them,  in  his 
possession  as  such  agent  of  said  corporation  as  aforesaid,  and 
being  then  and  there  intrusted  therewith  as  aforesaid,  for  tiic 
purpose  aforesaid  and  for  no  other  purpose,  did  approjjriate 
the  said  sura  of  money,  and  the  said  coins,  and  e.ich  of  them. 


m 


55 


. 


i 


STATE  V.  TROLSON 


2J5 


to  his  own  use,  for  his  own  benefit,  and  did  appropriate  the 
same,  and  the  whole  thereof,  in  a  manner  and  for  purposes 
otlier  than  that  for  which  the  same  were  intrusted;  and  then 
iind  there  did  use  the  said  sum  of  money  and  the  stiid  coins, 
and  the  whole  thereof  and  each  of  said  coins  for  his  own  bene- 
fit, and  did  use  the  same  and  the  whole  thereof,  in  a  manner 
and  for  purposes  other  than  that  for  which  the  same  were 
ii  t(  1  as  aforesaid;  and  thereby  did  embezzle  said  sum  of 
inonoy  and  said  coins  and  each  of  them,"  all  of  which  is  con- 
trary to  tlie  form  of  the  statute.  The  indictment  shows  wlio 
])laced  the  money  in  the  defendant's  hands,  the  purposes  for 
wltich  it  was  intrusted  to  him,  and  that,  instead  of  carrying 
onf  said  trust,  he  did  embezzle  the  same. 

Embezzlement  is  not  an  oifense  at  common  law,  but  was 
created  by  statute;  therefore,  in  deciding  the  question  sub- 
mitted, we  must  be  governed  by  the  statute  of  our  own  state. 
The  statute  under  consideration  reads  as  follows :  "  Any  per- 
son, or  any  agent,  manager  or  clerk  of  any  person,  corporation, 
association  or  partnership,  with  whom  any  money,  prop- 
erty or  effects  shall  have  been  deposited  or  intrusted,  who  shall 
use  or  appropriate  such  money,  property  or  effects,  or  any  part 
thereof,  in  any  manner,  or  for  any  other  purpose  than  that 
for  which  the  same  was  deposited  or  intrusted,  shall  be  guilty 
of  embezzlement."  In  setting  out  a  statutory  offense  it  is  suf- 
ficient to  describe  it  in  the  words  of  the  statute,  with  a  state- 
ment of  the  acts  constituting  the  offense,  in  ordinary  and 
concise  language,  and  in  such  a  manner  as  to  show  that  the  stat- 
utory offense  has  been  committed  by  tlie  party  therein  named, 
and  to  inform  him  as  to  what  is  intended.  State  v.  Logan,  1 
Xcv.  510;  U.  S.  V.  Gooding,  12  Wheat.  172;  PeojyUv.  Gray,  m 
Cal.  271;  People  v.  Tomllnson,  00  Cal.  345;  Com.  '»>.  Bennett, 
lis  Mass.  451;  Golden  v.  Stats,  22  Tex.  App.  2;  Crump  v.  State, 
'l'.\  Tex.  App.  010;  Wood  v.  State,  47  Ark.  49ii:  Lowenthal  v. 
State,  32  Ala.  581);  State  v.  Wolff,  34  La.  Ann.  1153;  /luffnmn 
V.  State,  89  Ala.  33;  People  v.  Ilennessij,  15  Wend.  150;  1  Whart. 
Crim.  Law,  1001.  "  The  cases  are  few  and  exceptional,"  said 
Foster,  J.,  in  Com.  v.  Raymond,  97  Mass.  509,  "  in  which  an  in- 
dictment which  follows  the  words  of  the  statute  will  be  held 
to  be  insufficient."  The  word  "embezzle"  has  a  well  defined 
meaning.  In  the  Century  Dictionary,  "embezzle"  is  defined 
as  the  act  "  to  steal  slyly,  purloin,  filch,  make  off  with,  to  ap- 


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246 


AMERICAN  CRIMINAL  REPORTS. 


propriate  fraudulently  to  one's  own  use,  as  what  is  intrusted 
to  one's  care;  apply  to  one's  private  use  by  a  breach  of  trust, 
as  a  clerk  or  servant  who  misapplies  his  master's  money  or 
valuables."  Webster's :  "  To  appropriate  fraudulently  to  one's 
own  use,  as  property'  intrusted  to  one's  care;  to  ai)ply  to  one's 
private  use  by  a  breach  of  trust,  as  (O  embezzle  public  money." 
Whart.  Law  Diet.:  "Larceny  by  ckrk  or  servant  or  agent; 
the  act  of  appropriating  to  himself  t  lat  which  he  receives  in 
trust  for  another."  Anderson's  Law  Diet.:  "Appropriation  to 
one's  own  use  of  anything  belonging  to  another,  whether  right- 
fully or  wrongfully  in  the  possession  of  the  taker;  theft." 
"  Embezzlement  is  a  sort  of  a  statutory  larceny  committed  by 
servants  and  other  like  persons  where  there  is  a  trust  reposed, 
and  theref  >re  no  trespass,  so  that  the  act  would  not  be  larceny 
at  the  common  law."    1  Bish.  Crim.  Law,  §  .507. 

As  hereinbefore  stated,  embezzlement  is  a  crime  defined  by 
statute,  and  it  will  not  be  disputed  but  what  it  is  within  the 
l)ower  of  the  legislature  to  declare  what  acts  would  constitute 
tlie  crime,  and  fix  the  punishment  thereof.  One  of  the  ele- 
ments that  enters  into  the  statutory  definition  of  embezzle- 
ment is  the  fiduciary  or  confidential  relation  existing  between 
the  employer  and  the  employe;  and  this  is  especially  true  with 
regard  to  agents  of  such  corporations  as  Wells,  Fargo  &  Co., 
which  was  organized  for  the  purpose  of,  and  is  doing  a  large 
express  business,  in  transmitting  money  and  other  valuables  to 
different  parts  of  the  country,  and  the  work  connected  there- 
with must  necessarily  bo  done  by  and  through  confidential 
clerks  and  agents,  who  are  intrusted  with  the  duties  of  receiv- 
ing, forwarding  and  the  care  and  custody  of  large  sums  of 
money,  valuables  and  property  so  de])osited  and  intrusted  to 
said  cor])oration,  through  its  clerks  and  agents,  for  shipment, 
and  in  which  said  corporation  has  a  special  ownership,  and  is 
held  responsible  for  the  loss  or  miscarriage  thereof  after  it  is 
once  received  and  receipted  for  by  its  authorized  agents.  The 
legislature  of  1887  had  in  view  the  nature  of  the  business  trans- 
acted by  corporations  organized  for  banking  and  express 
companies,  milling  and  mining  companies,  companies  and  indi- 
viduals engaged  in  stock  brokerage.  All,  or  nearly  all  of  the 
business  had  to  be  done  by  and  through  agents,  clerks  and 
employes,  who  necessarily,  from  the  nature  o*  their  employ- 
ment, were  intrusted  with   large  sums  of  money,  valuable 


STATE  V.  TROLSON. 


247 


sted 
rust, 
y  or 
)ne's 
one's 
ley." 
eiit; 
s  in 
n  to 
ght- 
ft." 
l)y 
osed, 
ceny 


shares  of  stock  and  bullion.  The  legislature  was  also  awn  ro 
that  large  sums  of  money  and  valuable  shares  of  stock,  that 
had  been  intrusted  to  agents  for  certain  purposes  wore  appro- 
priated and  used  by  such  agents,  not  with  the  intention  of 
stealing  the  same  and  depriving  the  owner  of  the  use  thereof 
for  all  times,  but  with  the  hope  and  expectation  of  being  able 
to  save  themselves  from  financial  ruin.  If  prices  in  the  stock 
board  turned  their  way,  they  were  all  right  and  the  money 
and  stocks  were  replaced,  and  the  owners  thereof  know  noth- 
ing of  the  matter;  but  if  the  reverse  should  happen,  thoy  were 
bankrupt  and  defaulters.  Take  the  case  under  consideration 
for  an  example.  The  defendant  testified  that  he  had  boon  in 
the  employment  of  Wells,  Fargo  &  Company  some  sixteen 
years.  That  after  he  became  a  married  man,  on  account  of 
sickness  in  hi 3  family,  the  wages  he  received  were  not  suiHciont 
to  meet  his  expenses.  That  he  commenced  to  uso  money  in- 
trusted to  him  in  small  sums;  that  he  speculated  in  stocks. 
That  he  borrowed  money  at  different  times  to  replace  tlio 
amounts  he  had  taken.  That  his  employer  knew  nothiug  of 
these  appropriations.  Finally,  on  the  1st  day  of  Decombor, 
1802,  he  was  some  $2,000  short  in  his  accounts.  When  he 
received  the  commission  mentioned  in  the  indictment,  ho  failetl 
to  enter  it  on  the  book  of  the  ofiice,  or  to  forward  the  same 
to  the  party  for  whom  it  was  intended,  and  the  com])any  knew 
notliing  of  the  matter  until  it  was  called  upon  to  ])ay  and  did 
pay,  the  sum  charged  in  the  indictment.  lie  also  tostifie<l 
that  he  never  intended  to  steal  the  money,  but  always  intended 
to  repay  the  same,  and  would  have  done  so  if  ho  bad  been 
given  time.  State  v.  Pratt,  98  Mo.  482.  It  was  to  cover  cases 
of  this  kind  that  the  legislature  left  out  the  words  "  wilfully, 
unlawfully  and  with  intent  to  steal,"  and  the  word  ombezzlod 
contains  within  itself  the  charge  that  the  defendant  approi)ri- 
ated  the  money  to  his  own  use,  and  sufficiently  dosigjiatos  tlio 
crime  intended  to  be  charged.  State  v.  Wo/J',  34  La.  Ann.  1153. 
The  counsel  for  appellant  contends  that  "in  every  crime  or 
public  offense  there  must  be  a  joint  ojieration  of  act  iiiid  intent, 
or  criminal  negligence;"  and  that  the  words,  "  with  intent  to 
steal"  should  have  been  set  forth  in  the  indictment.  The  stat- 
ute under  consideration  dotis  not  make  the  criminal  intent  an 
element  of  the  offense  further  than  is  necessarily  included  in 
the  words,  "  who  shall  use  or  appropriate  such  money,  prop- 


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ii 


24S 


AMERICAN   CRIMINAL  REPORTS. 


erty  or  effects,  or  any  part  thereof,  in  any  manner  or  for  any 
other  purpose  than  that  for  which  the  same  was  dopositeil 
or  intrusted,  shall  be  guilty  of  embezzlement."  The  langua;,fe 
of  the  statute,  which  is  copied  into  the  indictment,  is  clear, 
and  plainly  imiwrts  that  the  defendant  did  appropriate  the 
money  to  his  own  use  with  the  intention  of  dei)riving  the 
owner  of  the  use  thereof;  and  it  is  also  clear  to  our  minds  that 
neither  the  defendant  nor  his  counsel  could  have  been  misled 
as  to  the  offense  charged.  The  intent  which  is  mentioned  in 
the  text-books  on  criminal  law  as  essential  to  constitute  a 
crime  is  not  necessarily  an  evil  or  wrongful  intent,  beyond 
that  whicli  is  involved  in  the  prohibited  act.  Whatever  one 
voluntarily  does  he  of  course  intends;  and,  whenever  the  stat- 
ute has  made  that  act  criminal,  the  party  voluntarily  doing 
the  prohibited  act  is  chargeable  with  the  criminal  intent,  and 
the  statute  of  1SS7,  "  does  not  make  it  necessary  to  allege  that 
the  act  was  knowingly  done,  as  a  constituent  |)art  of  the 
crime."  Com.  v.  Ehoell,  2  Mete.  (Mass.)  190;  Bish.  St.  Crimes, 
§  250.  Bishop  on  Criminal  Procedure  (volume  1,  §  ."iSS),  says: 
"  It  is  perhaps  safe  to  say  that  in  all  cases  where  a  statute  cre- 
ates an  offense,  and  mentions  some  intent  as  an  element 
thecein,  the  indictment  must  follow  th(}se  statutes  in  this  par- 
ticular and  specify  the  intent.  On  the  other  hand,  as  a  general 
proposition,  if  the  statute  is  silent  concerning  the  intent,  there 
need  be  no  intent  alleged  in  the  indictment."  "  8f),  in  regard 
to  frequent  attempts  which  have  been  made  to  exDiujrate  indi- 
viduals charged  with  disobedience  to  penal  laws,  on  the  ground 
of  good  faith  or  error  of  judgment,  it  has  been  held  that  no 
excuse  of  this  kind  will  avail  against  the  ])erempt()ry  words  of 
a  statute  imposing  a  penalty.  If  the  prohibited  act  has  been 
done,  the  penalty  must  be  ])aid.  The  offense  consists  in  the 
violation  of  the  law,  not  in  the  intent  or  motive  by  which  the 
party  was  actuated.  Sedg.  St.  Const.,  80,  and  autlujrities  there 
cited. 

In  the  case  of  State  v.  Comha,  47  Ivan.  ISil,  it  is  said : 
"The  second  objection — that  the  information  contains  no 
allegation  of  intent — can  not  be  sustained.  Tiie  charge  as 
stated,  includes  the  evil  intent  of  wrongfully  appropriating 
money  intrusted  to  him  by  Fearn  for  a  special  purpose,  to  his 
cwn  use,  and  sufficiently  characterizes  the  intent  with  which 
the  offense  was  committed."    In  State  v.  Nohmd^  1 1 1  Mo.  473. 


any 
iteil 

Oiir. 

tlie 

the 
that 

ed 
in 
to  il 


■ 


STATE  V.  TROLSON. 


249 


the  court  said  :  "  It  is  next  objected  that  the  indictment  is 
insufficient  for  failure  to  aver  the  intent  with  which  the  defend- 
ant converted  the  money  to  his  own  use.  *  *  *  It  has  gen- 
erally been  ruled,  under  similar  statutes,  that  an  indictment 
substantially  charging  the  crime  in  the  terms  of  the  statute  is 
sufficient."  In  the  c&se  ot  Leotiard  v.  State,  7  Tex.  Aj)]).  435, 
it  is  said :  "  It  is  no  part  of  the  description  of  the  offense  of 
embezzlement,  as  in  theft,  that  it  was  taken  with  the  intent  to 
deprive  the  owners  of  the  property  or  its  value,  or  to  appro 
])riate  it  to  the  benefit  of  the  taker.  The  indictment  alleges 
the  property  to  have  been  in  the  possession  of  the  defendant, 
which  would  to  some  extent  excuse  the  pleader  from  a  more 
minute  description.  Still,  we  are  of  the  opinion  it  was  suffi- 
ciently described  for  the  purpose  of  this  prosecution,  to  apprise 
the  defendant  as  to  what  he  was  charged  with."  In  IlaUted 
V.  State,  41  N.  J.  Law  589,  Beasley,  C.  J.,  speaking  for  the 
court,  said :  '•  Nothing  in  law  is  more  incontestable  than  that 
with  respect  to  statutory  offenses;  the  maxim  that  crime 
proceeds  only  from  a  criminal  mind  does  not  universally  apply. 
The  cases  are  almost  without  number  that  vouch  for  this." 
The  case  of  State  v.  Hopkins,  56  Vt.  200,  was  an  indictment 
for  embezzlement,  and  in  passing  upon  the  question  of  intent, 
the  court  said :  "  The  remaining  question  in  resj)ect  to  the 
charge  is  the  one  relating  to  the  intent  of  the  respondent  in 
doing  the  alleged  act.  Was  it  necessary'  that  he  should  have 
acted  framlulently  and  feloniously,  that  he  should  have  the  in- 
tent to  steal,  that  he  should  have  a  heart  void  of  socia.1  duty, 
and  been  fatally  bent  on  mischief  %    We  tlunk  not." 

Without  the  citation  of  further  authorities,  which  are  num- 
erous, wo  are  of  tlie  opinion  that  there  is  no  det'et't  in  the 
indictment.  It  is  drawn  in  such  a  manner  as  tobriui,'-  the  de- 
fendant within  the  provisions  of  the  statute.  Tlie  nature  of 
Ills  employment  is  sot  out  in  ordinary  and  concise  language. 
That  he  r»v»Mved  the  uionoy  in  the  course  of  his  emi)l()ynumt; 
the  ownership  of  the  money,  together  with  his  duty  in  relation 
thereto;  and  that  he  appropriated  the  same  to  his  own  use, 
and  embezzled  the  same,  is  fully,  directly  and  expressly  alleged 
without  uncertainty  or  ambiguity.  And  courts  will  not  inter- 
l)olate  into  a  statute  a  corrupt  motive  as  au  ingredient  of  the 
offense  of  embezzlement,  for,  when  an  act  is  prohibited  in  ex- 
l)ress  terms  by  the  statute,  such  prohibition  can  not  bo  con- 


jfM'l.J 


l>  f 


m  fs'i 


M\ 


V^^l 


ing\ 


%  :M 


t 


i    ■    V 


'.'I'.li 


t.h^ 


1tn 

Li- 


250 


AMERICAN  CRIMINAL  REPORTS. 


tracted  so  as  to  embrace  only  such  persons  as  do  such  act  with 
intent  to  steal  the  money  or  property.  Nor  is  it  in  the  prov- 
ince of  the  court  to  say  whether  this  law  is  too  rigorous  or  not. 
That  is  for  the  legislative  department  to  determine.  Courts 
must  declare  the  la\/  as  they  find  it. 

The  intent  with  which  the  party  appropriates  the  money  or 
property  to  his  own  use  is  a  question  of  fact,  to  be  determined 
from  the  evidence  in  the  particular  case.  People  v.  DeLaij, 
80  Cal.  52;  People  v.  Galland,  55  Mich.  628.  In  the  case  under 
consideration  the  question  of  intent  was  submitted  to  the  jury 
in  the  instructions  of  the  court,  which  read  as  follows :  "  The 
next  question  is  that  it  must  appear  from  the  evidence  that 
the  defenilant  appropriated  this  money,  or  some  portion  of 
it,  to  his  own  purpose,  with  the  intent  to  deprive  Wells,  Fargo 
&  Co.  of  it;  and  that  fact  must  be  shown  beyond  a  reasonable 
doubt.  Tlierefore,  if  you  believe  from  the  evidence  that  tlie 
defendant,  John  Trolson,  received  this  sum  of  money,  and  that 
he  received  it  as  the  agent  of  Wells,  Fargo  &  Co.,  for  the  pur- 
pose of  transmission  to  Richard  Mercer  at  Los  Angeles,  and  that 
instead  of  transmitting  it  as  he  should  have  done,  that  he 
diverted  it  and  appropriated  it  to  his  own  use,  and  did  use,  and 
did  so  witli  the  purpose  and  intent  of  using  it,  that  fact  would 
constitute  the  crime  of  embezzlement  as  defined  by  the  statute 
and  you  should  convict  the  defendant.  If,  on  the  other  hand, 
you  should  believe  the  statement  made  by  the  defendant,  that 
when  he  received  this  money  he  deposited  it  in  the  safe,  and 
although  the  facts  be  that  he  did  not  transmit  it,  as  was  his 
duty  to  do,  but  that  he  left  it  in  the  safe,  and  did  not  use  it,  he 
can  not  be  held  guilty.  The  offense  of  embezzlement  consists 
of  two  things — the  act  of  taking  the  money,  and  the  intention 
with  which  it  is  taken.  If  you  believe  his  statement  that  he 
received  this  mouey,  and  did  not  take  or  use  it  for  his  own  pur- 
pose, or  for  any  other  purpose  whatever,  or  any  part  of  it,  lie 
must  be  acquitted."  From  the  foregoing  it  is  seen  that  the 
question  of  intent  with  which  the  defendant  appropriated  the 
mone\'  to  his  own  use  was  submitted  to  the  jury  with  the  evi- 
dence in  the  case,  and  the  law  has  been  complied  with. 

Counsel  for  appellant  contends  that  the  statute  of  1 887,  under 
which  the  defendant  was  indicted, is  unconstitutional,  b}'  reason 
of  its  non-conformity  to  section  17,  article  4  of  the  constitution 
which  reads :    "  Each  law  enacted  by  the  legislature  shall  em- 


STATE  V.  TROLSON. 


2oi 


briico  but  ono  subject,  and  matter  properly  connected  there- 
with, which  subject  shall  be  briefly  expressed  in  the  title;  an<l  no 
law  shall  be  revised  oraraended  by  reference  to  its  title  only,  but 
in  such  case  the  act  as  revised,  or  section  as  amended,  shall  be  re- 
enucted  and  published  at  length."  The  law  embraces  but  one 
subject,  and  matter  properly  connected  therewith,  to  wit,  de- 
fining the  acts  which  shall  constitute  the  crime  of  embezzle- 
ment, and  fixing  the  punishment.  He  further  argues  that  it 
can  not  be  determined  from  the  reading  of  the  title  whether  it 
was  intended  as  an  amendment  to  sections  4634  and  4635,  Gen- 
eral Statute,  or  a  supplemental  act;  that  there  is  no  repealing 
clause.  Wo  agree  with  the  counsel  that,  if  the  Act  of  1887 
was  an  attempted  amendment  of  the  above  sections,  as  such  it 
is  an  absolute  failure;  and  we  are  confident  it  was  not  intended 
as  a  supplemental  act.  Nor  is  it  repugnant  to,  or  in  conflict 
with  either  one  of  the  above  mentioned  sections,  and  does  not 
repeal,  directly  or  by  implication,  the  former  statute  defining 
the  crime  of  embezzlement,  but  is  an  independent  statute  com- 
plete within  itself.  The  legislature  has,  in  section  1,  in  clear  and 
uniuistakable  language  set  forth  fully  what  acts  shall  constitute 
the  crime.  Section  2  fixes  the  punishment  for  violation  of  the 
provisions  of  section  1.  It  is  a  familiar  doctrine  that  repeals 
of  statutes  by  implication  are  not  favored.  People  v.  Gitsthi, 
.57  Mich.  408,  and  authorities  therein  cited.  The  court  said 
"  that  the  question  of  repeal  is  largely  one  of  intent;  and  if  the 
two  statutes  can  stand,  and  both  have  effect,  they  must  be 
allowed  to  do  so."  Cooley  on  Constitutional  Limitations 
(page  1S2),  says  :  "  But  repeals  by  implication  are  not  favored; 
and  the  repugnancy  between  two  statutes  should  be  very 
clear  to  warrant  a  court  in  holding  that  the  latter  in  time  re- 
peals the  other,  when  it  does  not  in  terms  purport  to  do  so." 
Sedgwick  on  Construction  of  Statutory  and  Constitutional 
Law  (page  354),  says :  "  But  it  is  only  in  case  of  irreconcilable 
repugnancy  that  this  rule  applies.  It  gives  way  to  the  funda- 
mental principle  that  the  intention  of  the  legislature  is  to  gov- 
ern. *  *  *  The  general  rule  is  conceded  to  be  that,  where 
the  two  statutes  contain  repugnant  provisions,  the  one  last 
signed  by  the  governor  is  a  repeal  of  one  previously  signed; 
but  this  is  so  merely  because  it  is  presumed  to  be  so  intended  by 
the  lawmaking  power.  Where  the  intention  is  otherwise,  and 
that  intention  is  manifest  upon  the  face  of  either  enactment, 


IW. 


M 


,!i;  r 


"T- 


AMERICAN   CRIMINAL  REPORTS. 


■1- 


'i 


Pi      a 

't'  '■' 

• f  •  -  "f 

*  I'll 

1  pil 


the  plain  moaning  of  the  legislative  power  thus  manifostod  is 
th3  paramount  rule  of  construction.  It  is  no  part  of  tlic  <luty 
of  the  judiciary  to  resort  to  technical  subtleties  to  defeat  tho 
obvious  purposes  of  the  legislative  power  in  a  matter  over  whicli 
that  power  has  a  constitutional  right  to  control."  Where 
there  are  two  acts  on  the  same  subject,  the  rule  is  to  give  effect 
to  both,  if  possible.  State  v.  Archibald,  43  Minn.  328;  Bish.  St. 
Crimes,  §§  155, 156.  The  Act  of  18S7  is  in  no  wisa  repugnant 
to,  nor  conflicts  with,  the  former  laws  in  relation  to  embezzle- 
ment. In  our  opinion  the  prosecuting  officer  may  draw  the  in- 
dictment under  the  Act  of  18S7  or  1879,  as  the  facts  in  the 
case  might  seem  to  require,  and  was  so  inten:l3d  by  the  legis- 
lature. Thetitleof  the  Act  of  1887,  reads:  "An  Act  to  further 
define  and  punish  embezzlement."  We  think  the  title  is  suf- 
ficient, and  not  misleading.  The  word  "  further "  can  bo 
omitted,  and  yet  the  act  will  have  a  good  title.  It  is  a  well 
established  rule  of  construction  that,  if  the  act  is  broader  than 
the  title,  that  part  of  the  act  indicated  by  the  title  will  stand, 
while  that  portion  of  the  act  not  indicated  by  the  title  must  bo 
rejected.  Such  being  the  case,  the  reverse  must  follow,  and, 
where  the  title  is  broader  than  tho  act,  that  portion  of  the  title 
which  has  no  legitimate  connection  with  the  body  of  the  act 
must  be  held  to  be  surplusage  and  disregarded. 

It  is  argued  that  the  instructions  given  by  the  court  were 
inconsistent  with  one  another,  and  misleading.  The  ^vhole 
charge  to  a  jury  must  bo  taken  together,  and  considered  as  an 
entirety,  and  all  that  is  required  is  that  the  law  be  clearly 
stated  in  accordance  with  the  facts  in  the  case,  that  the  jury 
may  not  be  misled;  and  when  the  instructions  state  the  law 
they  must  be  sustained.  We  have  carefully  examined  the  in- 
structions in  the  case,  and,  considered  together,  they  are  a 
full,  clear  and  correct  exposition  of  the  law  applicable  to  tho 
facts  in  the  case,  and  the  defendant  was  not  prejudiced  tliereby. 

The  verdict  of  the  jury  is  supported  by  the  evidence.  True  it 
is  that  the  defendant  testified  that  he  put  the  money  in  the  safe, 
and  that  amount  and  more  was  found  therein.  He  admitted 
that  he  had  taken  and  used  money  for  speculative  ])urposes 
which  had  been  intrusted  to  him  as  agent  of  Wells,  Fargo  & 
Co.;  that  it  had  been  going  on  for  three  years;  that  on  the 
date  the  money  was  paid  by  IMcGrath  to  him  to  be  forwarded 
to  Mercer  he  was  in  the  neighborhood  of  $2,000  short  in  his 


STATE  V.  TROLSON. 


253 


accounts  with  Wells,  Fargo  &  Co.  It  was  sliou'n  at  the  trial 
that  Ihi  failed  to  make  an  entry  on  the  books  of  the  cojnpany 
of  tlio  receipt  of  the  money,  and  it  was  conceded  that  it  had 
never  heen  sent  to  Mercer  by  Trolson  Therefore,  when  the 
defendant  received  that  money,  and  failed  to  enter  an  account 
thereof  in  the  books  of  the  company,  and  ])laced  the  money 
in  the  safe  to  make  up  his  deficits  in  other  accounts,  he  diverted 
the  saitl  sum  of  money  from  the  uses  and  jmrposes  for  which  it 
was  intended,  and  converted  the  same  to  his  own  use,  and  by 
so  doing  he  violated  the  law.  The  mere  fact  tiiat  there  was  a 
large  amount  of  money  in  the  safe,  and  that  the  money  the 
defendant  received  from  McGrath  was  a  part  of  the  larger 
amount,  constituted  no  defense  when  it  was  shown  that  he  was 
$2,000  sliort  in  his  accounts.  That  ho  made  no  entry  in  the 
books,  and  failed  to  send  the  money  to  Mercer,  as  was  liis  duty 
to  do,  were  all  facts  and  circumstances  to  be  subnnttod  to  the 
jury,  from  which  they  could  determine  the  intent  of  the  de- 
fendant in  appropriating  the  money  in  the  manner  in  which 
he  did. 

We  can  not  close  this  opinion  in  more  apt  language  than  that 
used  by  the  Supreme  Court  of  Missouri  in  the  case  of  SfMe  v. 
Md/ilt'i/,  107  Mo.  3G1,  wherein  it  is  said  :  "  The  object  and 
puri)ose  of  the  statute  was  to  prohibit  by  severe  punishment 
the  conversion  of  money  received  b}'  virtue  of  official  positions 
and  certain  fiduciary  relations  named  therein.  It  was  enacted 
with  a  view  to  prevent  the  growing  tendency  of  those  intrusted 
with  i)ublic  moneys  and  trust  funds  to  speculate  for  their  own 
personal  aggrandizement.  To  accomplish  this  purpose  it  was 
deemed  best  to  say  to  officers  and  trustees :  '  You  shall  not 
convert  to  your  own  use,  in  any  manner  whatever,  the  moneys 
you  have  received  by  virtue  of  your  public  trust.  Your  good 
intentions  will  not  restore  these  moneys  after  your  investment 
has  ])roved  disastrous.  It  matters  not  that  in  many  cases  you 
honestly  think  you  can  safely  invest  the  ].nblic  funds,  and  will 
be  able  to  restore  them  when  called  for.  They  were  not  placed 
in  your  hands  for  such  a  purpose.  To  save  you  from  dishonor, 
your  sureties  from  bankruptcy  and  loss,  we  will  deter  you  from 
attempting  such  a  proceeding.'  Experience  justified  the  legis- 
lature in  coming  to  this  conclusion.  Observation  had  taught 
tiiat  many  well  meaning  men  had  been  lured  to  their  own  dis- 
grace and  ruin  by  converting  the  trust  funds  in  their  hands  to 


!l  I 


lint''' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


1^122    |25 
■tt  m    12.2 

•If   |4£   12.0 


L25  i_U   1 1.6 


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CarpoFation 


4^ 


3.^ 


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<^ 


n  WBT  MAM  STRH? 

«tfnSTIR,N.Y.  USM 
(7U)I72-4S03 


:;r^ 


254 


AMERICAN  CRIMINAL  REPORTS. 


5  t. 


their  own  private  ends,  and  having  lost,  attempted  to  cover  up 
their  property,  and  make  good  the  trust  funds  by  false  charges 
and  vouchers." 

How  aptly  the  above  covers  the  case  under  consideration 
may  be  summed  up  in  a  very  few  words.  The  defendant 
was  compelled  to  pay  the  sum  of  $175  by  reason  of  his  having 
delivered  a  package  of  books  to  a  party  who  was  not  entitled 
to  receive  them.  He  says :  "  I  was  unable  to  make  this  pay- 
ment out  of  my  salary  and  meet  my  other  expenses.  I  used 
money  coming  into  my  hands  to  speculate  on  in  hopes  to  make 
my  loss  good."  He  took  the  money  that  had  been  given  to 
him  by  Peter  for  a  certain  purpose  to  pay  the  amount  he  had 
heretofore  used  for  his  own  benefit,  out  of  the  money  he  had 
received  from  Paul.  The  long  looked  for  profits  on  his  in- 
vestments did  not  come  to  hand.  On  or  about  the  1st  day 
of  December,  1892,  he  had  appropriated  to  his  own  use  the 
sura  of  $2,000;  he  says,  "  taken  at  different  times  and  in  small 
amounts."  About  this  time  he  received  the  Mercer  money  from 
McGrath,  and  instead  of  sending  it  to  Mercer,  as  was  his  duty 
to  do,  he  placed  it  in  the  safe  to  cover  his  former  pecula- 
tions, and  with  the  hope  that  he  might  be  able  to  raise  money 
from  some  source  to  meet  the  Mercer  demand  before  he  would 
be  called  upon  for  the  money.  But  such  was  not  to  be  the 
case.  Mercer,  not  receiving  his  money,  made  a  demand  on  the 
home  office,  and  the  amount  was  paid,  and  the  defendant  ex- 
posed. The  offense  committed  by  the  defendant  comes  within 
the  words  of  the  statute;  also  within  its  reason  and  spirit, 
and  the  mischief  it  was  intended  to  remedy.  The  judgment 
and  order  appealed  from  are  affirmed. 


'  ;:■ 


V; 


BiGELow,  J.  (concurring).    To  what  has  been  said  by  the 
Chief  Justice,  I  desire  to  add : 

1.  The  objection  to  the  indictment  that  it  does  not  state 
facts  sufficient  to  constitute  a  public  offense  is  not  waived  by 
a  failure  to  make  the  point  in  the  district  court  either  by 
demurrer  or  upon  motion  in  arrest  of  judgment.  Such  an 
objection  may  'je  taken  for  the  first  time  in  the  appellate  court 
State  V.  Ma  ok,  20  Or.  234;  Lemons  v.  State,  4  W.  Va.  755; 
State  V.  Sims,  43  Tex.  521. 

2.  The  indiotment  follows  the  language  of  the  statute  of 
1887,  p.  81,  and  onder  that  statute  is  certainly  sufficient,  as  is 


H-^ 


STATE  V.  TROLSON. 


255 


abundantly  shown  by  the  preceding  opinion.  The  only  ques- 
tion, then,  is  whether  that  is  a  valid  and  constitutional  law. 
It  is  objected  that  it  is  not,  because  it  is  virtually  an  amend- 
ment of  sections  4034,  4635,  Gen.  St.,  which,  under  the  consti- 
tution, can  only  be  amended  by  re-enacting  them  in  full;  and 
a  number  of  Nebraska  cases  {SmmU  v.  White,  4  Neb.  357;  Sov- 
ereign V.  State,  7  Neb.  410;  Stricklett  v.  State,  31  Neb.  674;  and 
Smith  V.  State,  34  Neb.  689),  are  cited  as  supporting  that  view. 
It  seems,  however,  that  the  courts  of  that  state  stand  alone 
upon  that  question;  and  while  their  position  may  be  the  more 
correct,  viewed  from  a  theoretical  and  philosophical  stand- 
point, in  my  judgment  the  weight  of  authority  and  the  more 
practical  reason  is  with  those  that  hold  the  general  rule  that 
the  clause  of  the  c  institution  under  consideration  does  not 
apply  unless  the  subsequent  statute  is,  in  terms  as  well  as  in 
effect,  an  amendment  of  the  preceding  statute.  Speaking  of 
the  constitutional  provision  that  an  amended  section  of  a  stat- 
ute must  be  re-enacted  and  published  at  length,  Judge  Cooley 
says :  "  It  should  bo  observed  that  statutes  which  amend  oth- 
ers by  implication  are  not  within  this  provision,  and  it  is  not 
essential  that  they  even  refer  to  the  acts  or  sections  which  by 
implication  they  amend."  Const.  Lim.  182.  This  statement 
is  well  supported  by  the  adjudged  cases  of  many  states.  A 
statute  is  frequently  so  interwoven  with  others,  and  either  di- 
rectly or  indirectly  modifies  or  amends  so  many  others,  and  the 
rule  contended  for  is  itself  so  uncertain  and  indefinite,  and  in 
its  nature  incapable  of  reasonably  fixed  limits  of  application, 
that,  as  it  seems  to  me,  its  adoption  would  lead  to  more  uncer- 
tainty and  confusion  in  the  law  than  it  would  eliminate. 
Therefore,  if  we  admit  the  position  of  counsel  that  the  Act  of 
1887  is  an  amendment  of  the  previous  statutes  concerning  em- 
bezzlement, it  does  not  follow  that  the  act  is  unconstitutional. 
I  concur  in  the  afiirmance  of  the  judgment,  and  of  the  order 
refusing  a  new  trial. 

Note. — What  constitutes.— To  constitute  embezzlement,  the  money 
appropriated  need  not  have  been  intrusted  to  the  accused  by  the  owner 
thereof,  and  it  is  sufficient  if  the  money  was  consigned  to  his  employer, 
who  intrusted  it  to  him.  Com.  v.  Clifford  (Ky.  App.),  27  S.  W.  Rep.  811. 
Embezzlement,  «e  defined  in  Bishop  on  Criminal  Law  (section  567),  upon 
authority  of  numerous  cases  cited,  is  a  sort  of  statutory  larceny,  commit- 
ted by  servants  and  other  like  persons,  where  there  is  a  trust  reposed,  and 
tlierefore  no  trespass,  so  that  the  act  would  be  larceny  at  the  common  law. 


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AMERICAN  CRIMINAL  REPORTS. 


And  in  1  Bouv.  Law  Diet.,  p.  586,  it  is  said,  in  relation  to  various  statutes 
in  this  country  and  England  on  the  subject,  "  The  general  object  of  tlu'se 
statutes  doubtless  was  to  embrace,  as  criminal  offenses  punisliable  by  law, 
certain  cases  where,  although  the  moral  guilt  was  quite  as  severe  as  in  lar- 
ceny, yet  tlie  te<;hnical  objection  arising  from  the  fact  of  a  poi-ssession  law- 
fully acquired  by  the  party,  secured  him  from  punishment." 

One  who  embezzles  money  which  comes  into  his  possession  by  virtue 
of  his  employment  is  none  the  less  an  agent,  because  he  and  another  com- 
pose a  partnership  which  was  the  agent.  Carr  v.  State  (Ala.),  16  So.  Rep. 
155. 

Where  defendant  sold  his  non-transferable  labor  check,  expressly  non- 
transferable, and  later  collected  proceeds  for  vendee,  but  failed  to  account 
therefor,  he  was  not  guilty  of  embezzlement,  as  proceeds  belonged  to  him. 
St.  Clair  v.  State  (Ala.),  14  So.  Rep.  544. 

A  verdict  of  embezzlement  would  be  fully  warranted  in  a  case  where  an 
attorney  at  law,  acting  as  agent  for  the  payee  of  a  note,  received  tlie 
amount  from  the  drawee,  and  used  the  same  for  his  own  purjwses,  conceal- 
ing from  his  principal  the  fact  of  the  payment  of  the  note.  People  v. 
Treadwell,  69  Cal.  226;  7  Am.  Cr.  Rep.  153. 

Under  the  general  criminal  code  defining  embezzlement  as  a  criminal 
offense,  the  subject  of  embezzlement  must  be  the  property  of  another,  and 
partnership  property  can  not  be  said  with  reference  to  either  partner  to  be 
the  property  of  another.  State  v.  Beddkk,  2  So.  Dak.  134;  8  Am.  Cr.  Rep. 
204. 


Edelhoff  v.  State. 


(4  Wyo.  -;  86  Pac.  R.  627.) 

Embezzlement:  Indictment— Evidence— Sufflciency—Existence  of  Corpora- 
tion—How proved, 

1.  Since  the  Crimes  Act  (Sess.  Laws  1890,  c.  73),  §  52,  defining  embezzlement 

by  a  clerk  or  employe  fit)m  his  employer,  does  not  require  a  demand  and 
refusal  to  pay  over,  as  an  element  of  such  crime,  an  indictment  under 
such  section  need  not  allege  such  demand  and  refusal. 

2.  A  description  of  property  embezzled  as  "  lawful  money  of  the  United 

States  of  America"  is  sufficient,  without  siiecifying  any  particular 
note,  coin  or  bill. 

3.  Rev.  St. ,  §  501,  requires  the  execution  of  duplicate  certificates  of  incorpo- 

ration—one to  be  filed  with  the  secretary  of  state,  the  other  in  the  clerk's 
office  of  the  county  wherein  the  corporation's  business  is  to  be  carried 
on.  Section  502  provides  that  a  copy  of  the  certificate,  certified  by 
the  secretary  of  state,  shall  be  evidence  of  the  existence  of  such  incor- 
porated company.  Held,  that  on  the  trial  of  an  indictment  for  embez- 
zlement from  a  domestic  corporation,  the  existence  of  such  corporation 


EDELHOFF  V.  STATE. 


257 


could  be  shown  by  parol  evidence  as  to  the  county  in  which  it  con- 
ducted its  business,  and  by  the  original  certificate  flled  with  the  clerk 
of  sucli  county. 

4.  Wliere,  on  a  criminal  trial,  the  evidence  was  undisputed  as  to  defendant's 
guilt,  the  supreme  court  will  not  reverse  a  judgment  of  conviction, 
though  the  instruction  defining  "reasonable  doubt"  be  erroneous. 

0.  On  the  trial  of  a  clerk  of  a  corporation  for  embezzlement  of  $208.40,  under 
an  indictment  containing  but  one  count,  the  evidence  showed  that  it 
was  defendant's  duty  to  collect  rent  of  the  company's  houses,  and  remit 
the  collections  monthly;  that  he  collected  $8.73  monthly,  as  rent  of  a 
certain  house,  for  eighteen  months,  and  each  month  reported  the  house 
as  unoccupied,  and  did  not  remit  the  money  collected.  Held,  that 
the  oiTense  of  embezzlement  was  complete  each  moi^th,  and  defendant, 
being  charged  with  but  one  embezzlement,  can  not  be  convicted  of 
eighteen  distinct  embezzlements,  treated  as  one  offense. 

Error  to  District  Court,  Carbon  County;  Jesse  Knight, 
Judge. 

Emil  Edelhoff  was  convicted  of  embezzlement,  and  appeals. 
Reversed. 


'  h 


Hugo  Donzelmanriy  for  plaintiff  in  error. 

C.  N.  Potter,  Attorney-General,  for  the  State. 

Groesbeck,  C.  J.  Two  assignments  of  error  aro  made  in 
the  petition  in  error :  (1)  That  the  district  court  erred  in  over- 
ruling tlie  demurrer  to  the  indictment;  and  (2)  that  the  court 
erred  in  overruling  the  motion  of  plaintiff  in  error  for  a  new 
trial.  Under  the  rules  of  this  court,  the  second  assignment  of 
error  renders  available,  as  assignments  of  error,  all  the  grounds 
set  forth  in  the  motion  for  a  new  trial.  There  are  forty  dis- 
tinct matters  presented  in  this  motion,  one  of  which  is  that  the 
verdict  of  guilty  is  not  sustained  by  sufficient  evidence,  and  is 
contrary  to  law;  and  the  other  grounds  relate  to  errors  of  law 
occurring  during  the  trial,  to  the  effect  that  the  court  over- 
ruled the  demurrer  to  the  indictment,  the  alleged  errors  in  the 
admission  of  evidence,  the  refusal  to  give  to  the  jury  certain 
instructions  requested  by  plaintiff  in  error,  and  the  giving 
of  certain  instructions  on  behalf  of  the  prosecution,  over  the 
objection  of  the  plaintiff  in  error.  We  do  not  deem  it  neces- 
sary to  pass  upon  all  these  allege!  erroi's  in  detail,  and  we  shall 
consider  those  only  which,  in  our  opinion,  will  dispose  of  the 
case. 

1.  The  demurrer  to  the  indictment  was  upon  the  ground 
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AMERICAN  CRIMINAL  REPORTS. 


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that  the  facts  therein  alleged  do  not  constitute  a  crime  under 
the  laws  of  this  state.  The  charging  part  of  the  indictment  is 
as  follows :  "  That  Emil  Edelhoff,  late  of  the  county  afore- 
said, on  the  thirtieth  day  of  June,  in  the  year  of  our  Lord,  one 
thousand  eight  hundred  and  ninety-three,  at  the  county  and 
state  aforesaid,  the  said  Emil  Edelhoff  being  then  and  there  a 
clerk,  servant  and  employe  of  the  Union  Pacific  Coal  Company, 
a  corporation  duly  existing  under  the  laws  of  the  State  of 
"Wyoming,  and  then  and  there  having  access  to,  control  and 
possession  of  two  hundred  eight  and  40-100  dollars,  in  lawful 
money  of  the  United  States  of  America,  then  and  there  the 
property  of  the  said  Union  Pacific  Coal  Company,  and  to  the 
possession  of  which  the  said  Union  Pacific  Coal  Company  was 
then  and  there  entitled,  did,  while  in  such  employment,  unlaw- 
fully and  feloniously  take,  purloin,  secrete  and  appro])riate  to 
his  own  use,  the  money  aforesaid,  then  and  there  belonging  to 
the  said  Union  Pacific  Coal  Company  as  aforesaid,  contrary  to 
the  form  of  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  State  of  AVyoming." 
This  indictment  was  drawn  under  section  .53  of  the  crimes  act 
(chapter  73,  Sess.  Laws  1890),  which  reads:  "Every  officer, 
agent,  attorney,  clerk,  servant  or  employe  of  any  person  who, 
having  access  to,  control  or  possession  of  any  money,  article 
or  thing  of  value,  to  the  possession  of  which  his  employer  is 
entitled,  shall,  while  in  such  employment,  take,  nurloin,  secrete 
or  in  any  manner  whatever  appropriate  to  his  tvn  use,  or  to 
the  use  of  others,  any  money,  coin,  bills,  notes,  credits,  choses 
in  action,  or  other  property  or  article  of  value,  belonging  to  or 
deposited  with,  or  held  by  such  person,  in  whose  employment 
said  officer,  agent,  attorney,  clerk,  servant  or  employe  may  be, 
shall  be  deemed  guilty  of  embezzlement,  and  shall  be  impris- 
oned in  the  penitentiary  for  not  more  than  fourteen  years." 
The  indictment  is  challenged  because  it  does  not  allege  a  de- 
mand for  the  money  alleged  to  be  embezzled,  but  this  is  not 
required,  except  in  sections  52  and  54  of  the  crimes  act;  and 
these  sections — one  preceding  and  one  succeeding  the  section 
under  which  this  indictment  was  drawn — severally  relate  to  the 
embezzlement  of  public  funds  by  an  official  who  fraudulently 
fails  or  refuses  to  account  for,  pay,  and  deliver,  to  such  person 
as  may  be  legally  entitled  to  receive  the  same,  all  moneys, 
choses  in  action,  and  property  which  may  have  come  into  his 


EDELHOFF  v.  STATE. 


259 


hands  by  virtue  of  his  office,  either  at  the  expiration  of  or 
tlurin*'  his  terra  of  office,  and  to  the  refusal  of  an  attorney  at 
law,  or  person  engaged  in  making  collections  for  others,  who, 
bavin"  money  or  anything  of  value  in  his  possession  or  under 
his  control,  received  for  his  client  or  employer,  fraudulently 
refuse  .  to  pay  over  and  deliver  the  same  to  his  employer  or 
client,  or  the  person  by  them  designated  to  receive  the  same, 
less  the  charges  thereon,  on  reasonable  demand.  These  sec- 
tions, with  the  one  under  consideration,  are  independent  of 
each  other,  and  were  doubtless  enacted  in  order  to  cover  every 
possible  phase  of  the  fiduciary  relations  generally  arising  in 
prosecutions  for  embezzlement.  As  the  statute  under  which  it 
is  conceded  this  indictment  was  brought  does  not  require  a 
demand  and  refusal  to  pay  over  as  an  element  of  the  crime  of 
embezzlement,  it  is  not  necessary  that  such  an  allegation  should 
appear  in  the  accusation.  State  v.  Tompldns,  32  La.  Ann.  623; 
WalUs  V.  State  (Ark.),  16  R.  W.  821;  State  v.  New,  22  Minn. 
76;  Ilollingsworth  v.  State,  111  Ind.  289;  12  K  E.  490.  The 
description  of  the  property  alleged  to  have  been  embezzled  as 
"  lawful  money  of  the  United  States  of  America  "  is  warranted 
by  section  143  of  the  crimes  act,  and  by  section  3254,  Rev.  St., 
without  specifying  any  particular  coin,  note  or  bill.  Jt  ap- 
jiears  to  us  that  the  indictment  is  sufficient,  and  states  an 
offense,  as  defined  by  the  laws  of  the  state. 

2.  It  is  contended  that  the  allegation  in  the  indictment  that 
the  Union  Pacific  Coal  Company,  whose  property  is  alleged  to 
iiave  been  embezzled,  was  "  a  corporation  duly  existing  under 
the  laws  of  the  State  of  Wyoming,"  is  not  sustained  by  the 
evidence,  and  that,  although  the  bare  allegation  that  said  com- 
pany was  a  corporation  At^ould  have  been  sufficient,  without 
alleging  that  it  was  a  domestic  corporation,  yet  such  an  alle- 
gation was  a  matter  of  description — an  averment  that  must  be 
proved  as  laid.  The  statute  (section  502,  Rev.  St.)  provides 
that  a  copy  of  the  certificate  of  incorporation  of  a  domestic 
corporation,  duly  certified  by  the  secretary  of  state,  under  the 
great  seal  of  the  state,  shall  be  evidence  of  the  existence  of  such 
incorporated  company,  and  this  is  invoked  a^^  prescribing  the 
exact  proof  required  in  she  wing  the  existence  of  such  a  corpo- 
ration. The  statute  relating  to  the  creation  of  corporations 
requires  the  execution  of  duplicate  certificates  of  incorpora- 
tion by  the  incorporators,  one  to  be  filed  with  the  secretary  of 


!7 


'  ) 


I^Miii 


260 


AMERICAN  CRIMINAL  REPORTS. 


state,  and  the  other  in  the  office  of  the  clerk  of  the  county 
wherein  the  business  of  the  corporation  is  to  be  carried  on. 
Rev.  St.  §  501.  The  evidence  of  the  corporate  existence  of  the 
Union  Pacific  Coal  Company  was  shown  by  the  production  of 
the  original  certificate  filed  with  the  clerk  of  Carbon  county, 
and  by  parol  evidence  to  the  effect  that  such  corporation  con- 
ducted and  operated  its  business  in  that  county,  and  that  de- 
fendant was  employed  by  such  corporation.  Although  the 
statute  provides  that  the  certified  copy  of  the  secretary  of 
state  is  evidence  of  the  existence  of  such  corporation,  it  does 
not  declare  that  this  is  the  only  evidence  of  such  corporate 
existence  that  may  be  presented,  and  so  other  evidence  may 
be  introduced  to  show  that  fact.  The  law  was  doubtless 
enacted  to  dispense  with  the  necessity  of  introducing  the  orig- 
inal certificate  of  incorporation,  which  is  a  matter  of  record, 
not  for  the  purpose  of  establishing  a  new  rule  of  evidence  to 
prove  the  corporate  existence.  Surely  one  of  the  duplicate 
certificates  of  incorporation  is  certainly  as  effective  proof  as  a 
certified  copy  of  the  other,  particularly  as  it  is  shown  that  the 
corporation  was  doing  business  as  such,  and  that  it  employed 
the  plaintiff  in  error. 

In  the  case  of  Calkim  v.  State.,  IS  Ohio  St.  370,  it  is  stated 
that  on  the  trial,  parol  proof  was  offered  and  admitted  to  the 
effect  that  an  association  of  persons  existed,  claiming  to  be  a 
corporation  under  the  name  of  the  Michigan  Southern  «k 
Northern  Indiana  Eailroad  Company;  suing  and  being  sued, 
having  a  common  seal,  operating  a  railroad  as  such  and  exer- 
cising the  franchise  of  a  corporation.  It  was  held  that  such 
proof  was  sufficient  to  show  the  corporate  existence  of  such  an 
association,  and  this  in  a  criminal  case.  The  court  say :  "  In 
so  holding,  we  think  we  come  fairly  within  the  principles 
declared  in  Sasser  v.  State,  13  Ohio,  453,  and  Reed  v.  State,  15 
Ohio,  217;  and  where  a  person  accepts  employment  from  an 
association,  claiming  and  assuming  to  have  a  corporate  exist- 
ence, as  its  clerk,  and  then,  by  means  of  the  facilities  which 
his  employment,  and  the  confidence  in  him,  affords,  embezzles 
its  property,  it  is  difficult  to  perceive  any  principle  of  justice, 
public  or  private,  which  would  be  subserved  by  requiring  of 
the  state  stricter  proof  of  the  corporate  existence  of  the 
employer  of  the  clerk,  or  of  the  owner  of  the  property 
embezzled,  than  was  given  in  this  case.''    The  original  certifi- 


EDELHOFF  v.  STATE. 


201 


cato  of  incorporation  of  the  company,  filed  in  the  office  of  the 
clerk  of  Carbon  county,  and  other  evidence  in  the  case,  shows 
clearly  that  the  company  was  doing  business  in  that  county, 
and  that  the  defendant  knew  this,  and  was  employed  by  such 
a  corporation,  and  this  was  sufficient. 

3.  The  court,  in  an  instruction  to  the  jury  requested  by  the 
prosecution,  thus  defined  a  "  reasonable  doubt ":  "  The  court 
instructs  the  jury  that  while,  before  you  can  find  the  defend- 
ant guilty,  you  must  find  that  his  guilt  has  been  established  by 
the  evidence,  beyond  a  reasonable  doubt,  still  the  reasonable 
doubt  which  entitles  the  accused  to  an  acquittal  is  a  doubt  of 
guilt,  reasonably  arising  from  all  the  evidence  in  the  case.  It 
does  not  mean  a  doubt  arising  from  mere  caprice,  or  ground- 
less conjecture.  The  proof  is  to  be  deemed  sufficient  when 
the  evidence  is  sufficient  to  impress  the  judgment  of  ordinarily 
prudent  men  with  a  conviction  on  which  they  would  volunta- 
rily act  in  an  important  affair  of  their  own."  The  plaintiff  in 
error  excepted  to  the  giving  of  this  instruction  to  the  jury 
over  his  objection,  and  the  case  of  Palmerston  v.  Territory,  3 
Wyo.  333,  is  cited  in  support  of  the  objection.  The  instruc- 
tion in  that  cLse,  and  that  given  in  this  case,  upon  the  question 
of  reasonable  doubt,  are  nearly  the  same.  In  the  instruction 
before  us  the  word  "  voluntarily  "  is  employed,  and  in  the  other 
it  is  omitted.  The  insertion  of  the  word,  it  is  claimed  by  the 
prosecution,  will  meet  the  objections  of  the  territorial  supreme 
court  in  the  case  of  Palmerston  v.  Territory,  where  the 
instruction  given  was  held  bad,  although,  under  some  of  the 
authorities,  it  would  be  considered  good.  The  cases  are 
reviewed  in  the  note  to  the  case  of  Cornish  v.  Territory,  3 
Wyo.,  at  page  101,  3  Pao.  793,  showing  the  conflicting  views 
of  courts  upon  the  proper  definition  of  a  "  reasonable  doubt." 
To  the  cases  mentioned  iu  such  note  may  be  added  those  of 
Morgan  v.  State,  48  Ohio  St.  376,  and  S2nes  v.  People,  122  111. 
82,  252.  Mr.  Bishop  says,  in  his  work  on  Criminal  Procedure, 
after  reviewing  the  interpretation  of  the  words  "  reasonable 
doubt,"  that  "  the  books  do  not  contain  one  affirmative  defini- 
tion which  can  safely  be  pronounced  both  helpful  and  accu- 
rate; "  and  the  learned  author  asserts  that  there  are  no  words 
plainer  than  "  reasonable  doubt,"  and  none  so  exact  to  the  idea 
meant.    1  Bish.  Cr.  Proc.  1095. 

We  are  relieved  from  the  necessity  of  determining  the  cor- 


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AMERICAN  CRIMINAL  REPORTS. 


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rectness  of  the  definition,  as,  however  erroneous  the  instruction 
may  be,  an  examination  of  the  record  will  show  that  the  jurv 
could  not  have  been  misled  by  it.  The  evidence  was  ciear, 
positive,  and  undisputed  as  to  the  guilt  of  the  defendant  below 
of  the  offense  of  embezzlement,  and  there  was  no  room  for 
doubt  of  his  guilt.  It  is  well  settled  that  a  judgment  will  not 
be  reversed  for  an  erroneous  ruling  or  instruction,  where  it 
clearly  appears  from  the  whole  record  that  it  did  not  prejudice 
the  rights  of  the  defendant,  although  an  exception  to  the 
erroneous  ruling  was  properly  and  timely  interposed.  Bcmj 
V.  State,  31  Ohio  St.  225,  and  cases  cited.  For  the  reason  that 
the  instruction  could  not  possibly  have  misled  the  jury,  under 
the  evidence  in  the  case,  which  was  that  of  the  prosecution— 
the  defendant  below  evidently  relying  upon  alleged  errors  in 
the  trial,  and  submitting  the  case  on  the  evidence  of  the 
state — we  will  not  disturb  the  verdict  and  judgment  for  this 
cause,  and  we  shall  not  attempt  to  decide  whether  or  not  the 
instruction  complained  of  was  erroneous. 

4.  Is  the  verdict  sustained  by  the  evidence  ?  The  record 
discloses  that  the  plaintitf  in  error  was  employed  as  a  clerk  of 
the  Union  Pacific  Coal  Company  at  Hanna,  Carbon  county, 
Wyo.,  and  that  it  was  part  of  his  duties  to  collect  rents  for 
the  occupation  of  certain  dwellings  by  its  emplo3'es,  and  to 
make  a  report  of  such  rents  collected,  for  the  superintendent 
of  the  company,  and  to  remit  monthly  the  cash  received  fi-oni 
this  source.  For  a  period  of  time  between  and  including  Jan- 
uary, 1892,  and  June,  1893,  while  in  such  employment,  he  col- 
lected, personally,  from  one  August  Martilla,  an  employe  of 
the  company,monthly,  for  six  and  one-half  months,  the  rent  for 
house  No.  87,  the  sum  of  $8.75,  and  the  sum  of  $8.25,  monthly, 
for  eleven  and  one-half  months,  for  the  rental  of  house  No.  50, 
At  the  end  of  each  month,  plaintiff  in  error  made  reports  of 
the  rents  collected,  as  it  was  his  duty  to  do,  and  remitted  the 
proceeds,  but  failed  to  account  for  the  rents  paid  to  him  by 
Martilla;  reported  that  the  house  occupied  by  Martilla  was 
vacant,  and  did  not  remit  the  amount  paid  for  the  rent.  These 
reports  and  letters  of  remittance  were  signed  by  Edelhoff,  for 
the  superintendent  at  Ilanna,  while  the  receipts  given  to  Mar- 
tilla were  signed  by  the  plaintiff  in  error  personally,  with  one 
exception,  and  that  was  in  the  name  of  the  superintendent, 
with  the  initial  letter  of  the  surname  of  the  plaintiff  in  error— 


EDELHOFF  v.  STATE. 


263 


the  way  the  rent  reports  and  letters  of  remittance  wore  signed. 
Tliero  was  also  evidence  showing  that  no  other  remittances 
were  made  by  plaintiff  in  error,  or  by  the  office  in  which  he 
was  em  ployed,  than  those  proven.    The  plaintiff  in  error  offered 
no  evidence  whatever.    Ilis  counsel  objected  to  the  introduc- 
tion of  any  evidence,  except  as  to  one  transaction — that  of  the 
collection  of  the  rent  for  the  month  of  January,  1892,  from 
Martilla,  and  the  reports  of  the  amounts  collected  and  the  re- 
mittances— showing  that  the  rent  was  not  paid  in  to  the  com- 
pany, nor  the  amount  received  therefor  transmitted  to  the 
company,  on  the  ground  that  as  but  one  transaction,  and  but 
one  otfense,  was  charged  in  the  indictment,  the  proof  should 
be  limited  to  one  transaction;  and  the  same  objection  was  made 
at  the  close  of  the  evidence  on  behalf  of  the  prosecution,  when 
the  receipts  for  rent,  the  rent  reports,  the  cash  reports,  and 
letters  of  remittance,  were  offered  in  evidence.    These  objec- 
tions   wore    overruled    by  the  court  and    exceptions    were 
taken.    We  think  the  evidence  was  admissible  for  the  pur- 
|)ose  of  showing   acts  of  similar  nature  to  establish  guilty- 
knowledge,  to  exclude  the  possibility  of  accident  or  mistake  in 
the  accounting,  and  to  show  the  felonious  intent.     The  cases 
are  reviewed  in  People  v.  Gray,  66  Cal.  271,  where  the  author- 
ities are  collected  and  examined  on  this  proposition.     See 
Archb.  Cr.  Pr.  &  PI.  (7th  Ed.),  314.     "  But  this  is  a  dangerous 
species  of  evidence,  not  only  because  it  requires  a  defendant  to 
meet  and  explain  other  acts  than  those  charged  against  him, 
and  for  which  he  is  on  trial,  but  also  because  it  may  lead  the 
jury  to  violate  the  great  principle  that  a  party  is  not  convicted 
of  one  crime  by  proof  that  he  is  guilty  of  another.     For  this 
reason  it  is  essential  to  the  rights  of  the  accused  that  when  such 
evidence  is  admitted,  it  should  be  carefully  limited  and  guarded 
by  instructions  to  the  jury,  so  that  its  operation  and  effect  may 
be  confined  to  the  single  legitimate  purpose  for  which  it  is 
competent."     Com.  v.  Shepard,  1  Allen  581;  State  v.  Zapage, 
57  N.  11.  24r5.    The  plaintiff  in  error  did  not  demand  an  elec- 
tion by  the  prosecution  as  to  which  charge  of  the  eighteen 
distinct  matters  proven  at  the  trial  the  prosecution  would 
demand  a  conviction  of,  nor  did  he  request  an  instruction  bear- 
ing upon  this  point;  and  the  court,  of  its  own  motion,  did 
nothing  to  indicate  to  the  jury  that  these  separate  trans- 
actions were  separate  and  distinct  offenses.    Indeed,  the  theory 


m 


j! 


li*i;i-. 


*f'  :n. 


!  'f 


264 


AMEUICAN  CRIMINAL  REPORTS. 


of  the  prosecution  was  that  these  several  acts  were  part  of  one 
offense,  and  that  the  embezzlement  of  all  the  various  sums 
constituted  one  single  act  of  embezzlement,  with  which  the 
plaintiff  in  error  was  charged.  This  view  was  evidently 
adopted  by  the  trial  court,  and  was  undoubtedly  the  only  one 
considered  by  the  jury,  as  the  verdict  discloses. 

The  plaintiff  in  error  was  found  guilty  of  embezzlement  and 
the  amount  of  the  property  embezzled  was  fixed  in  tiio  verdict 
at  1151.75,  which  is  the  aggregate  of  the  rents  collected  from 
Martilla  for  eighteen  months.  It  seems  to  us  that  the  offense 
of  embezzlement  was  complete  in  each  month,  as  all  the  ele- 
ments of  the  crime  were  present,  and  the  offense  of  embezzle- 
ment was  complete.  These  monthly  offenses  were  not  depend- 
ent upon  eoch  otlier,  and,  taken  together,  do  not  constitute  u 
single  fact  of  one  endeavor.  Neither  was  the  offense  a  con- 
tinuing one,  as  it  presents  none  of  the  conditions  of  the  old 
illustration — that  of  a  felonious  taking  of  gas  from  a  main,  or 
wine  from  a  butt,  by  means  of  a  tube,  where  the  felonious 
asportation  was  uninterrupted  and  continuous.  The  receipt  of 
the  money  was  shown.  The  report  that  the  house  for  which 
the  rent  was  collected  was  vacant — which  was  tantamount  to 
a  denial  of  the  receipt  of  the  money  for  it — the  false  account- 
ing, and  the  failure  to  pay  over  Or  account  for  the  money,  ])re- 
sent,  for  each  month,  a  clear  case  of  embezzlement,  and  all  tlie 
elements  of  the  crime.  Each  transaction  is  separate  and  dis- 
tinct, and  in  no  manner  dependent  upon  another.  If  one 
commits  an  embezzlement  by  a  series  of  connected  transactions, 
from  day  to  day,  a  charge  of  embezzlement  on  a  single  day  will 
cover  and  admit  evidence  of  the  whole.  1  Bish.  Cr.  Proc.,  397; 
Whart.  Cr.  Law,  §  1817.  The  case  of  Brown  v.  State,  18  Ohio 
St.  496,  513,  is  cited  by  Mr.  Bishop  in  support  of  his  text. 
The  evidence  in  that  case  showed  a  continuous  series  of  con- 
versions of  noney,  in  pursuance  of  a  conspiracy;  and  it  was 
held  sufficient  to  support  a  finding  by  the  jury  of  tiie  aggre- 
gate sum  as  the  amount  of  a  single  embezzlement,  which  the 
court  held  "  it  was,  in  fact  and  in  law,"  and  xery  pr<jperly  said  : 
"Were  it  otherwise,  the  particular  conversion  could  never  be 
ascer'  ained  or  proven,  and  there  would  have  to  be,  in  some 
cases,  almost  as  many  counts  as  there  were  dollars  embezzled." 
So,  in  Gra/uatt  v.  State,  25  Ohio  St.  162,  one  of  the  grounds  of 
error  alleged  related  to  the  action  of  the  trial  court  in  ovorrul- 


EDELHOFF  v.  STATE. 


265 


inff  tlic  motion  to  require  the  prosecuting  attorney  to  elect  upon 
which  of  the  charges  he  would  claim  a  conviction  from  the  evi- 
dence. This  election  related  to  several  suras  of  money  col- 
lected from  two  dififerent  persons  at  different  times,  both  of 
which  sums  were  relied  on  to  prove  the  charge  of  embezzle- 
ment. The  court  said :  "  We  see  no  error  in  the  action  of  the 
court.  The  money,  it  is  true,  was  received  at  different  times, 
from  different  jiersons.  But  the  collection  of  these  sevtral 
sums  by  the  plaintiff  in  error  was  lawful  and  in  due  course  of 
his  employment.  The  evidence  did  not  show  a  distinct  and 
independent  conversion  of  both  sums  in  one  transacti  n." 

We  have  caiufuliy  examined  the  case  of  Campbell  v.  State, 
35  Ohio  St.  70,  which  is  strongly  relied  upon  by  the  prosecution. 
A  motion  was  made  in  the  trial  court  to  compel  the  prose- 
cutor to  elect  upon  which  transaction  he  would  rely  for  a  con- 
viction, which  was  denied.    It  is  intimated  in  the  opinion  that 
at  the  time  this  motion  was  made  the  jury  might  well  have 
found  that  no  part  of  the  moneys  collected  by  the  defendant 
had  been  appropriated  to  his  own  use,  until  after  the  several 
sums  had  been  received,  and  that  the  whole  amount  was  con- 
verted and  appropriated  by  the  same  act.    The  defendant  had 
collected  notes  which  had  come  into  his  possession  at  different 
times,  and  the  proceeds  were  collected  at  different  times  and 
places;  yet  if  the  whole  amount  was  shown  to  be  in  his  hands 
at  one  time,  and  was  embezzled  in  one  transaction,  it  was  held 
that  but  one  offense  had  been  committed.     In  this  case  the 
defendant  was  charged  with  the  embezzlement  of  different 
sums  from  different  persons  in  one  count  in  the  indictment. 
There  had  been  a  demand  for  an  accounting  and  payment  long 
before  the  indictment  was  found;  and  the  jury  found  the  de- 
fendant guilty  of  embezzling  the  amount  collected  from  one 
person,  less  the  commission.     So,  in  the  case  cited,  there  was 
a  verdict  of  guilty  upon  but  one  transaction.    These  Ohio 
cases  were  all  reviewed  in  a  case  more  analogous  to  the  case  at 
bar — that  of  Myers  v.  State,  4  Ohio  Cir.  Ct.  R.,  at  page  573 — 
and  the  following  conclusion  was  reached :    "  We  think  that 
there  is  a  strong  implication  in  these  cases  that,  if  the  proof  has 
shown  that  the  conversions  were  at  wholly  different  times, 
that  the  election  should  have  been  made,  as  is  expressly  held 
in  Stochwell  v.  State,  27  Ohio  St.  563,  and  Bainh'idge  v.  State, 
30  Ohio  St.  264,  before  cited,  if  the  rule  is  the  same  in  cases  of 


■fifl; 


i ,„ 


266 


AMERICAN  CRIMINAL  REPORTS. 


5ji, 


4. 


embezzlement  as  in  others,  which  we  think  it  must  be."  In 
the  case  of  Sprouse  v.  Com,.,  81  Va.  374,  a  defendant  was  con- 
victed on  an  indictment,  one  count  of  which,  it  was  asserted, 
presented  a  case  of  duplicity — a  charge  of  the  forgery  of  a 
check,  and  the  forgery  of  pn  indorsement  thereon.  The  same 
objection  was  made  to  the  second  and  remaining  count — that 
the  charge  was  double,  in  alleging  an  alteration  of  the  check 
and  of  the  indorsement.  The  court  held  that  each  count  re- 
lated to  but  one  offense,  and  one  single  fact  of  endeavor,  and 
that  the  prisoner  could  not  have  been  embarrassed.  But  this 
case  considers  the  forgery  of  the  check  and  the  forgery  of  the 
indorsement  as  but  one  transaction,  and  constituent  and  com- 
ponent parts  of  the  same  cheat  and  fraud.  It  is  not  a  parallel 
case  to  the  one  at  bar,  where  each  act  of  embezzlement  is  sep- 
arate and  independent  of  the  other,  and  the  various  transac- 
tions are  separated  from  each  other  by  an  interval  of  a  month, 
and  have  no  relation  to  each  other.  The  case  of  State  v. 
Pratt,  98  ]\lo.  482,  is  also  cited  to  sustain  the  position  of  the 
prosecution  that  under  a  statute  somewhat  broader  than  ours, 
declaring  an  indictment  for  larceny  or  embezzlement  suffi- 
cient which  describes  the  money  stolen  or  embezzled  simply 
as  "  money,"  it  is  not  necessary  to  prove  more  than  the  em- 
bezzlement of  a  lump  sum  of  money;  but  an  examination  of  a 
succeeding  paragraph  of  the  opinion  does  not  sustain  such  a 
contention,  as  the  court  remarks  that  where  the  offense  of  em- 
bezzlement is  committed  by  a  trusted  servant,  and  the  abstrac- 
tions occur  daily,  or  whenever  cupidity  prompts,  it  is  an  im- 
possible thing  to  describe  the  identical  money  taken,  or  the 
precise  date  when  it  was  abstracted,  which  led  to  the  enact- 
ment of  the  statute  of  that  state,  borrowed  from  the  British 
statute.  However,  we  have  no  such  provision  as  that  con- 
tained in  the  acts  of  parliament,  permitting  an  allegation  in 
one  count  of  the  indictment  of  different  acts  of  embezzlement, 
committed  in  the  space  of  six  months,  by  the  same  servant 
against  the  same  master;  and  this  distinction  is  clearly  made 
in  the  case  of  Myers  v.  State,  4  Ohio  Cir.  Ct.  R.  575,  between 
the  British  statute  and  the  general  rule  requiring  that  but  one 
offense  be  stated  in  one  count  of  the  indictment. 

The  case  of  Ker  v.  People,  1 10  111.  627,  is  not  in  point.  It 
was  not  necessary,  under  the  Illinois  statute,  to  allege  the  par- 
ticulars of  the  embezzlement.    The  court  in  the  case  last  cited. 


EDELHOFF  v.  STATE. 


2G7 


is  careful  to  say  that,  where  separate  and  distinct  acts  of  em- 
bezzlement are  susceptible  of  direct  proof,  the  rule  might  be 
otherwise  than  for  a  prosecution  for  one  act  of  embezzlement 
for  the  "  aggregate  result "  of  the  series  of  acts.  This  is  un-| 
doubtedly  the  true  rule,  in  the  absence  of  a  statute;  and  where 
it  is  within  the  power  of  the  prosecution  to  allege  and  prove 
one  distinct  act  of  embezzlement,  which  renders  the  offense 
complete,  it  should  be  held  to  the  rule,  especially  where  the 
indictment  makes  a  single  accusation  of  a  single  offense. 
Cases  frequently  arise  where  the  exact  time  and  manner  of  the 
embezzlement  can  not  be  proven,  and  are  not  susceptible  of 
other  proof  than  the  shortage  or  deficit  of  the  one  sustaining 
to  the  client  or  employer  the  fiduciary  relation,  after  demand 
for  an  accounting  and  payment.  In  such  a  phase  of  the 
question  the  prosecution  would  be  unable  to  prove  more  than 
the  defalcation  of  the  aggregate  sum  embezzled.  In  the  case  of 
State  V.  iVolan,  111  Mo.  473,  a  public  official  was  charged  with 
the  embezzlement  of  public  funds;  and  although  three  differ- 
ent sums  were  traced  into  the  hands  of  the  defaulting  officer, 
the  court  said  that  for  aught  that  the  record  disclosed,  he  con- 
verted it  all  at  one  time. 

In  the  case  at  bar  there  were  eighteen  distinct  conversions, 
at  eigliteen  distinct  periods,  as  the  false  accounting  and  report 
that  the  house  was  vacant,  for  which  the  rent  was  collected, 
constituted  in  itself  a  conversion  and  appropriation,  and  made 
tiie  offense  complete.  We  do  not  decide  what  the  effect  would 
have  been  if  the  plaintiff  in  error  had  been  charged  with 
eighteen  different  embezzlements,  in  sei)arate  counts  of  the 
indictment,  each  being  a  felony  under  the  statute.  Such  a 
jiro^jedure  has  been  denounced  by  some  courts,  and  a])proved 
by  others.  The  authorities  are  collected  and  considered  at 
length  on  this  proposition  in  the  famous  and  much  criticised 
case  of  People  v.  Ziscomb,  60  N.  Y.,  at  page  574  et  seq.  The 
case  at  bar  presents  no  such  question,  but,  on  the  contrary, 
compels  us  to  decide  whether  a  man  may  be  convicted  of 
eighteen  distinct  felonies  when  he  is  charged  with  but  one 
felony,  and  whether  these  separate  offenses  may  be  treated 
as  one  offense.  Although  it  w-  ild  appear  that  the  plaintiff  in 
error  had  not  been  prejudiced  when  he  has  been  sentenced  to 
an  imprisonment  of  three  years,  when  the  statute  permits  the 
imposition  of  a  sentence  of  fourteen  years  for  one  distinct 


iB 


Wt' 


nil 


^  :\-M 


f' 


i    ';'' 


208 


AMERICAN  CRIMNAL  REPORTS. 


!'• 


■)    ::' 


It 


otfense  of  embezzlement,  and  that  he  might  be  subjected  to  a 
longer  term  by  being  tried  for  eighteen  offenses  upon  eighteen 
different  indictments,  or  in  eighteen  counts  in  one  indictment, 
yet  we  are  unwilling  to  establish  the  rule  that,  where  the  nature 
and  C.IU30  of  the  accusition  have  baen  spacifioally  conflned  to 
one  allegation  of  crime,  the  defendant  may  be  convicted  of 
more  than  one  crime.  It  may  be  ])ossible  that  since  embezzle- 
ment of  any  property  of  any  value  is  now  a  felony,  it  is  not 
necessar}'  for  the  jury  to  ascertain  the  value  of  the  property 
embezzled,  as  directed  by  section  3317,  Rev.  St.  {McDanlds  v. 
People,  118  111.  301);  yet  the  jury  did  so,  and  the  verdict  was 
permitted  to  stand.  A  verdict  of  guilty  of  any  of  the  sums 
embezzled,  at  any  of  the  times  proven,  we  should  have  lield 
good,  as  it  would  have  shown  that  the  jury  considered  but  one 
transaction,  and  but  one  offense,  and  were  not  influenced  by 
the  proof  of  several  distinct  acts  of  embezzlement.  That  thoy 
were  influenced  by  such  evidence,  and  treated  these  various 
acts  as  one  offense,  is  clear,  from  the  record.  This  was  erroi-, 
and  there  is  no  alternative  but  to  grant  anew  trial  of  the  cause, 
which,  it  is  duo  to  ourselves  to  say,  is  done  very  reluctantly, 
and  only  after  this  court  has  been  thoroughly  convinced  that 
to  sustain  this  verdict  would  be  dangerous  to  the  rights  of  tlie 
citizen.  No  man  should  be  tried  or  convicted  for  several 
offenses,  when  he  is  charged  with  but  one. 

We  have  not  considered  many  of  the  alleged  errors  com- 
mitted during  the  trial,  as  we  are  compelled  to  reverse  the 
cause  for  the  reasons  above  stated.  It  is  well  to  call  attention 
to  one  point  raised  by  counsel  for  plaintiff  in  error.  The  in- 
dictment charges  that  the  money  embezzled  was  "  in  lawful 
money  of  the  United  States  of  America."  No  proof  was  ad- 
duced to  show  that  the  money  embezzled  was  such.  It  may 
not  have  been  necessary  to  show  this  fact,  as  the  presumption 
might  be  that  the  money  was  a  legal  tender,  and  could  have 
been  nothing  but  lawful  money  of  the  country.  Yet  there  are 
some  cases  that  appear  to  hold  to  the  contrary.  It  would  have 
been  safer  to  have  alleged,  as  permitted  by  the  statute,  that 
the  defendant  embezzled  "money,"  without  alleging  more;  and 
it  would  have  been  better  to  have  proved,  under  the  indict- 
ment, that  the  money  paid  for  rents  was  lawful  monev  of  the 
United  States.  We  do  not  care  to  determine  this  question 
now,  as  it  is  unnecessary  to  do  so.    The  judgment  of  the  Dis- 


THE  QUEEN  v.  THOMPSON. 


209 


n 


trict  Court  for  Carbon  County  is  reversed,  and  the  cause  is  re- 
iminded  for  a  new  trial  in  conformity  witli  tlie  views  lierein 
ox  pressed. 

CoNAWAY  and  Clark,  JJ.,  concur. 


(Crown  Case  Reserved.) 

The  Queen  v.  Thompson. 

(3  L.  R.  (1893)  Q.  B,  Div.  12.) 

Ehdesce:    Confession— Evidence  of  confession— Wlien  inadmissible. 

1.  In  onliT  that  evidence  of  a  confession  by  a  prisoner  may  lie  admissible,  it 

must  be  afHrrnatively  proved  that  sucli  confession  waa  free  and  volun- 
tary, thiit  is,  was  not  preceded  by  any  itiducement  to  the  prisoner  to 
make  a  statement  held  out  by  a  person  in  authority,  or  that  it  was  not 
made  untd  after  such  inducement  had  clearly  been  removed. 

2.  Tlu'  jirisoner  was  tried  for  embezzling  the  money  of  a  company.     It  was 

provid  at  the  trial  that,  on  Innng  taxed  with  the  crime  by  the  chairman 
of  the  company,  he  saiil,  "Yes,  I  took  the  money,"  and  afterward 
made  out  a  list  of  the  sums  which  he  liad  embezzled,  and  with  the  as- 
sistance of  his  brother,  paid  to  the  company  a  part  of  such  sums.  The 
ciiairman  stated  that  at  the  time  of  the  confession  no  tlireat  was  use  I 
and  no  promise  made  as  regards  the  prosecution  of  the  prisoner,  but 
admitted  that,  before  receiving  it,  he  had  said  to  the  priwjner's  brother, 
"  It  will  be  the  right  thing  for  your  brother  to  make  a  statement,"  and 
the  court  drew  the  inference  that  the  prisoner,  when  he  made  the  con- 
fession, knew  that  the  chairman  had  s|)okeii  these  words  to  his  brother. 

3.  Hchl,  that  the  confession  ol  the  prisoner  lia<l  not  been  satisfactorily  prove<l 

to  have  Insen  free  and  voluntary,  and  that,  therefore,  evidence  of  the 
confession  ought  not  to  have  been  receive  I. 

Case  stated  by  the  acting  chairman  of  Quarter  Sessions  for 
the  County  of  Westmoreland. 

At  the  Westmoreland  Quarter  Sessions,  held  at  Kendal,  on 
October  21, 1892,  Marcellus  Thompson  was  tried  for  embezzling 
certain  moneys  belonging  to  the  Kendal  Union  Gas  and  Water 
Company,  his  masters. 

Mr.  Crewdson,  the  chairman  of  the  company,  at  whose  in- 
stance the  warrant  for  the  prisoner's  apprehension  had  been 
issued,  was  called  as  a  witness  by  the  prosecution  to  prove, 
among  other  things,  a  confession  by  the  prisoner. 


'1,! 


i 


2T0 


AMERICAN  CRIMINAL  REPORTS. 


i    I 


As  soon  as  this  confession  was  souG^ht  to  be  put  in  evidence, 
objection  was  taken  to  its  admissibility,  and  we  therefore, 
before  receiving  further  proof,  allowed  the  witness  to  be  cross- 
examined  by  the  prisoner's  counsel.  In  answer  to  the  hitter's 
questions,  the  witness  stated  that,  prior  to  the  confession  being 
made,  the  prisoner's  brother  and  brother-in-law  had  come  to 
see  him,  and  that  at  this  interview  he  said  to  the  prisoner's 
brother,  "  It  will  be  the  right  thing  for  Marcellus  to  make  a 
clean  breast  of  it."  The  witness  added,  "  I  won't  swear  I  did 
not  say  '  it  will  be  better  for  him  to  make  a  clean  breast  of  it.' 
I  may  have  done  so.  I  don't  think  I  did.  I  expected  what 
I  said  would  be  communicated  to  the  prisoner.  I  won't 
swear  I  did  not  intend  it  should  be  conveyed  to  the  prisoner. 
I  should  expect  it  would.  I  made  no  threat  or  promise  to 
induce  the  prisoner  to  make  a  confession.  I  held  out  no  hope 
that  criminal  proceedings  would  not  be  taken."  No  evidence 
was  produced  to  the  court  tending  to  prove  that  the  details  of 
the  interview  had  been  communicated  to  the  prisoner,  or  to 
rebut  the  evidence  of  Mr.  Crewdson,  as  to  what  took  place  at 
the  interview. 

It  was  then  contended  by  the  prisoner's  counsel  that  the 
above  statements  to  the  prisoner's  brother  were  inducements 
to  the  prisoner  to  confess,  held  out  by  a  person  in  authority, 
and  that  evidence  of  the  confession  was  therefore  inadmissible. 

We  found  that  Mr.  Crewdson  was  a  person  in  authority, 
and  we  found,  as  a  fact,  that  the  statements  made  by  him 
were  calculated  to  elicit  the  truth,  and  that  the  confession 
was  voluntary,  and  we  accordingly  admitted  the  evidence. 

The  witness  then  proved  that  after  the  interview  he  charged 
the  prisoner  with  embezzling  the  company's  money,  ai  '  one  of 
the  directors  told  the  prisoner  that  he  was  in  a  very  embar- 
rassing position.  The  prisoner  replied,  "I  know  that;  I  will 
give  the  company  all  the  assistance  I  can."  He  said  in  answer 
to  witness'  charge,  "  Yes,  I  took  it,  but  I  do  not  think  it  is 
more  than  £1,000.  It  might  be  a  few  pounds  more."  No 
statement  was  made  to  the  prisoner  that  the  confession  would 
save  him  from  prosecution;  there  was  no  threat  or  promise. 

Subsequently,  the  prisoner  made  out  a  list  of  moneys  which 
he  admitted  had  not  been  accounted  for  by  him.  This  list  we 
also  admitted  in  evidence. 


THE  QUEEN  v.  THOMPSON. 


271 


The  prisoner  was  convicted  and  sentenced  to  three  years 
penal  servitude. 

The  question  for  the  opinion  of  the  court  is  whether  the  evi- 
dence of  the  confession  was  properly  admitted. 

The  case  having  been  sent  down  for  amendment,  the  follow- 
ing statement  was  added : 

At  a  meeting  of  the  directors  a  question  was  asked  by  one 
of  the  directors  as  to  the  value  of  the  stock  on  a  farm  occu- 
pied by  the  prisoner's  brother,  and  it  was  suggested  that  a  bill 
of  sale  over  the  stock  should  be  given.  The  prisoner  stated 
that  the  worth  of  the  stock  was  over  £1,000,  but  that  he  could 
not  accept  the  suggestion  about  the  security  without  telling  his 
brother;  at  the  same  meeting  the  prisoner  said,  "  My  brothers 
have  got  it."  (Meaning  the  money.)  "  It  has  gone  to  pay  inter- 
est on  mortgages."  Mr.  Crewdson  said,  '•  I  never  agreed  not 
to  prosecute  if  a  bill  of  sale  were  given." 

After  the  charge  was  made,  £340  was  received  from  the 
prisoner,  together  with  some  money  and  an  I.  O.  U.  for  £25, 
which  were  found  in  the  cash  box.  Of  the  sum  of  £340,  £90 
was  paid  into  the  bank  by  the  prisoner,  and  £250  by  his 
brother.  Mr.  Crewdson  stated  that  no  arrangement  was  made 
as  to  the  discrepancy  being  treated  as  a  debt,  and  that  the  sum 
paid  was  simply  by  way  of  restitution. 

Shee,  Q.  C,  and  Cavanagh,  for  the  prisoner.  Evidence  of 
the  confession  was  not  admissible.  In  the  absence  of  proof  by 
the  prosecution  that  it  was  voluntary,  evidence  of  a  confession 
can  not  be  received.  Reg.  v.  Baldry,  2  Den.  C.  C.  430;  Reg.  v. 
Warringham,  2  Den.  C.  C.  447n.  Here  no  such  proof  was 
given.  It  has  been  repeatedly  held  that  proof  of  the  use  of 
such  an  expression  as  "  it  is  better  to  tell  the  truth  "  by  a  per- 
son in  authority,  excludes  evidence  of  a  confession.  Reg.  v. 
Gillis,  11  Cox  C.  C.  69;  Reg.  v.  Garner,  1  Dun.  C.  C.  320;  Reg. 
V.  Bate  and  others,  11  Cox  C.  C.  686;  Reg.  v.  Doherty,  13  Cox 
C.  C.  23;  Reg.  v.  Fennell,  7  Q.  B.  D.  147.  The  finding  that  the 
words  were  "  calculated  to  elicit  the  truth,"  shows  that  they 
0|>e rated  as  an  inducement  by  conveying  to  the  accused  that 
he  would  find  it  advantageous  to  admit  his  guilt.  A  confes- 
sion shown  to  have  been  brought  about  by  such  an  induce- 
ment can  not  be  proved.  3  Russell  on  Crimes,  pp.  441,  442, 
5th  ed. 


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272 


AMERICAN  CRIMINAL  REPORTS. 


U\ 


i-' 


Seffar  (with  him  C.  M.  Wilson),  for  the  i)rosecution.  Evi- 
dence  of  the  confession  was  admissible.  It  is  not  shown  tliat 
what  passed  between  the  prisoner's  brother  and  the  prosecutor 
was  communicated  to  the  prisoner.  The  words  used  were  also 
advice  on  moral  grounds.  Confessions  preceded  by  exhorta- 
tions of  this  kind  were  held  admissible  in  Jieg.  v.  Jarvis,  L.  Rep. 
1  C,  C.  R.  90,  and  Beg.  v.  Reeve,  L.  Rep.  1  C.  C.  R.  362.  The 
justices  have  found  that  the  confession  was  voluntary,  and  it 
was  for  them  to  decide  what  words  were  used,  and  whether 
they  were  repeated  to  the  prisoner  in  such  a  manner  as  to  convey 
a  promise  or  threat.  Evidence  of  a  confession  \s  prima  facie 
admissible,  and  can  only  be  excluded  upon  proof  by  the  pris- 
oner  that  the  confession  was  not  voluntary.  (They  also  cit<  1 
Rex  V.  Cotirt,  7  C.  «fe  P.  486;  Reg.  v.  Moore,  2  Den.  C.  C.  5is2, 
and  Rex  v.  Glewes,  4  C.  «fe  P.  221. 

April  29th  the  following  judgment  was  read  by 
Cavk,  J.  The  question  in  this  case  is  whether  a  particular 
admission  made  by  the  prisoner  was  admissible  in  evidence 
against  him.  This  is  a  question  which  must  necessarily  arise 
for  decision  in  a  number  of  cases,  both  at  petty  and  quarter 
sessions;  and  to  my  mind  it  is  very  unsatisfactory  that  the 
principle  which  must  guide  the  decision  of  magistrates  in 
these  cases  should  be  loosely  or  confusedly  interpreted. 

Many  reasons  may  be  urged  in  favor  of  the  admissibility  of 
all  confessions,  subject,  of  course,  to  their  being  tested  by  the 
cross-examination  of  those  who  heard  and  testify  of  them;  and 
Bentham  seems  to  have  been  of  this  opinion.  (Rationale  of  Ju- 
dicial Evidence,  Bk.  v.  ch.  vi.  s.  3.)  But  this  is  not  the  law  of 
England.  By  the  law,  to  be  admissible,  a  confession  must  be 
free  and  voluntary.  If  it  proceeds  from  remorse,  and  a  desire 
to  make  reparation  for  the  crime,  it  is  admissible.  If  it  flows 
from  hope  or  fear,  excited  hy  a  person  in  authority,  it  is  inad- 
missible. On  this  point  the  authorities  are  unanimous,  as  Mr. 
Taylor  says  in  his  Law  of  Evidence  (8th  ed.,  part  2,  ch.  15,  s. 
872) :  "  Before  any  confession  can  be  received  in  evidence  in  a 
criminal  case,  it  must  be  shown  to  have  been  voluntaril  v  made; 
for,  to  adopt  the  somewhat  inflated  language  of  Eyre,  C.  B.,  '  a 
confession  forced  from  the  mind  by  the  flattery  of  hope,  or  by 
the  torture  of  fear,  comes  in  so  questionable  a  shape,  when  it 
is  to  be  considered  as  evidence  of  guilt,  that  no  credit  ought  to 


^ 


THE  QUEEN  v.  THOMPSON. 


273 


be  ffiven  to  it,  and  therefore  it  is  rejected : '  WarichshalVa 
Ca<te,  1  Leach  C.  C.  E.  203.  The  material  question  conse- 
nuentlv  is,  whether  the  confession  has  been  obtained  by  the 
influence  of  hope  or  fear;  and  the  evidence  to  this  point  being 
in  its  nature  preliminary,  is  addressed  to  the  judge,  who  will 
require  the  prosecutor  to  show  affirmatively,  to  his  satisfac- 
tion, that  the  statement  was  not  made  under  the  influence  of 
an  improper  inducement,  and  who,  in  the  event  of  any  doubt 
subsisting  on  this  head,  will  reject  the  confession. 

Tlie  case  cited  in  support  of  this  proposition  is  licg.  v.  War- 
ringham,  2  Den.  C.  C.  417,  n.,  where  Parke,  B.,  says  to  the 
counsel  for  the  prosecution :  "  You  are  bound  to  satisfy  nio 
that  the  confession  which  you  seek  to  use  against  the  prisoner 
was  not  obtained  from  him  by  improper  means.  I  am  not  sat- 
isfied of  that,  for  it  is  impossible  to  collect  from  the  answers 
of  this  witness  whether  such  was  the  case  or  not."  Parke,  B., 
adds:  "I  reject  the  evidence  of  admission,  not  being  satisfied 
that  it  was  voluntary."  In  liey.  v.  Baldry,  2  Den.  C.  C.  430, 
it  is  said  by  Pollock,  C.  B.,  that  the  true  ground  of  the  exclu- 
sion is  not  that  there  is  any  presumption  of  law  that  a  confes- 
sion not  free  and  voluntary  is  false,  but  that  "  it  would  not  be 
safe  toconceive  a  statement  made  under  any  influence  of  fear." 
He  also  explains  that  the  objection  to  telling  the  prisoner  that 
it  would  be  better  to  speak  the  truth,  is  that  the  words  import 
that  it  would  be  better  for  him  to  saj'^  something.  With  this 
view  the  statutory  caution  agrees,  which  commences  with  the 
Tvords:  "You  are  not  obliged  to  say  anything  unless  you 
desire  to  do  so."  See  Indictable  Offenses  Act,  1848  (11  and  12 
Vict.  c.  42,  s.  IS). 

These  principles  are  re-stated  and  affirmed  by  the  present 
Lord  Chief  Justice  in  lieg.  v.  Fennell,  7  Q.  B.  D.  147,  p.  150,  in 
the  following  words :  "  The  rule  laid  down  in  Russell  on 
Crimes,  is  that  a  confession,  in  order  to  be  admissible,  must 
be  free  and  voluntary;  that  is,  must  not  be  extracted  by  any 
sort  of  threats  or  violence,  nor  obtained  by  any  direct  or  im- 
plied promises,  however  slight,  nor  by  the  exertion  of  any  im- 
proper influence.  It  is  well  known  that  the  chapter  in  Russell 
on  Crimes  containing  that  passage,  was  written  by  Sir  E.  V. 
Williams,  a  great  authority  upon  these  matters." 

If  these  principles  and  reasons  for  them  are,  as  it  seems  im- 
possible to  doubt,  well  founded,  they  afford  to  magistrates  a 
18 


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274 


AMERICAN  CRIMINAL  REPORTS. 


mr:ii 


If 


simple  test  by  which  the  admissibility  of  a  confession  may  be 
decided.  They  have  to  ask,  is  it  proved  affirmatively  that  the 
confession  was  free  and  voluntary — that  is,  was  it  preceded 
by  any  inducement  to  make  a  statement,  held  out  by  a  person 
in  authority?  If  so,  and  the  inducement  has  not  clearly  been 
removed  before  the  statement  was  made,  evidence  of  the  state- 
ment is  inadmissible. 

In  the  present  case  the  magistrates  appear  to  have  intended 
to  state  the  evidence  which  was  before  them,  and  to  ask  our 
opinion  whether  on  that  evidence  they  did  right  in  admitting 
the  confession.  Now  there  was  obviously  some  ground  for 
suspecting  that  the  confession  might  not  have  been  free  and 
voluntary;  and  the  question  is  whether  the  evidence  was  such 
as  ought  to  have  satisfied  their  minds  that  it  was  free  and  vol- 
untary.  Unfortunately,  in  my  judgment,  the  magistrates  do 
not  seem  to  have  understood  what  the  precise  point  to  be  de- 
termined was,  or  what  evidence  was  necessary  to  elicit  it. 
The  new  evidence  now  before  us  throws  a  strong  light  on 
what  was  the  object  of  the  interview  between  Mr.  Crcwdson 
and  the  prisoner's  brother  and  brother-in-law,  why  he  made 
any  communication  to  them,  and  why  he  expected  that  what 
he  said  would  be  communicated  to  the  prisoner.  There  is,  in- 
deed, no  evidence  that  any  communication  was  made  to  the 
prisoner  at  all;  but  it  seems  to  me  that  after  Mr.  Crewdson's 
statement,  that  he  had  spoken  to  the  prisoner's  brother  and 
brother-in-law  about  the  desirability  of  the  prisoner  making  a 
clean  breast  of  it,  with  the  expectation  that  what  he  had  said 
would  be  communicated  to  the  prisoner,  it  was  incumbent  on 
the  prosecution  to  prove  whether,  and  if  so,  what  communica- 
tion was  actually  made  to  the  prisoner,  before  the  magistrates 
could  properly  be  satisfied  that  the  confession  was  free  and 
voluntary. 

The  magistrates  go  on  to  say  that  they  inferred  that  the 
details  of  the  interview  would  be,  by  which  I  suppose  they 
intend  to  say  that  they  inferred  they  were,  communicated  to 
the  prisoner,  which  seems  to  have  been  the  right  inference  to 
draw  under  the  circumstances.  They  add  that  they  found,  as 
a  fact,  that  the  statements  made  by  Crewdson  were  calculated 
to  elicit  the  truth,  and  that  the  confession  was  voluntary. 
The  first  of  these  findings,  if  the  ruling  of  Pollock,  C.  B.,  in 
Jieg.  V.  Baldry,  2  Den.  C.  C.  430,  at  p.  442  is,  as  I  take  it  to  be, 


THE  QUEEN  v.  THOMPSON. 


275 


correct,  is  entirely  immaterial.  The  second  finding,  if  it  is  a 
corollary  from  the  first,  does  not  follow  from  it,  and  if  it  is  an 
imlopemlent  finding,  is  not  warranted  by  the  evidence;  and 
jis  the  question  for  us  is  whether  this  finding  was  warranted 
bv  the  evidence,  I  feel  compelled  to  say  that  in  my  judgment 
it  was  not.  Taking  the  words  of  Mr.  Crewdson  to  have  been, 
"It  will  be  the  right  thing  for  Marcellus  to  make  a  state- 
ment," and  that  those  words  were  communicated  to  the  pris- 
oner, I  should  say  that  that  communication  was  calculated,  in 
the  language  of  Pollock,  C.  B.,  to  lead  the  prisoner  to  believe 
that  it  would  be  better  for  him  to  say  something.  All  this, 
however,  is  matter  of  conjecture;  and  I  prefer  to  put  my 
judgment  on  the  ground  that  it  is  the  duty  of  the  prosecution 
to  prove,  in  case  of  doubt,  that  the  prisoner's  statement  was 
free  and  voluntary,  and  that  they  did  not  discharge  them- 
selves of  this  obligation. 

I  would  add  that  for  my  part  I  always  suspect  these  con- 
fessions, which  are  supposed  to  be  the  offspring  of  penitence 
and  remorse,  and  which,  nevertheless,  are  repudiated  by  the 
prisoner  at  the  trial.  It  is  remarkable  that  it  is  of  very  rare 
occurrence  for  evidence  of  a  confession  to  be  given  Avhen  the 
proof  of  the  prisoner's  guilt  is  otherwise  clear  and  satisfactory; 
but  when  it  is  not  clear  and  satisfactory,  the  prisoner  is  not 
infrequently  alleged  to  have  been  seized  with  the  desire,  born 
of  penitence  and  remorse,  to  supplement  it  with  a  confession; 
a  desire  which  vanishes  as  soon  as  he  appears  in  a  court  of 
justice.  In  this  particular  case  there  is  no  reason  to  suppose 
that  Mr.  Crewdson's  evidence  was  not  perfectly  true  and  ac- 
curate; but,  on  the  broad,  plain  ground  that  it  was  not  proved 
satisfactorily  that  the  confession  was  free  and  voluntary,  i 
think  it  ought  not  to  have  been  received.  In  my  judgment 
no  other  principle  can  be  safely  worked  by  magistrates. 


■v!!l 


:;:i!! 


mr 


Lord  Coleeidoe,  C.  J.,  Hawkins,  Day  and  Wills,  J.  J.,  con- 
curred. 

Conviction  quashed. 


-m. 


Note. — "  It  is  remarkable  that  it  is  of  rare  occurrence  for  evidence  of  a 
confession  to  be  given  when  the  proof  of  the  prisoner's  guilt  is  otherwise 
clear  and  satisfactory;  but  when  it  is  not  clear  and  satisfactory,  the  pris- 
oner is  not  infrequently  seized  with  the  desire,  bom  of  penitence  and  re- 


■m  i 


fN 


276 


AMERICAN  CRIMINAL  REPORTS. 


morse,  to  supplement  it  with  a  confession;  a  desire  which  vanishes  aa  soon  as 
he  appears  in  a  court  of  justice."  1  quote  this  sentence  from  the  opinion,  to 
add  to  it  my  emphatic  approval,  and  to  say  that  I  always  look  with  Knspi- 
rion  upon  confessions  whenever  made,  and  especially  so  when  made  to  a  fel- 
low prisoner.  Confessions  not  made  immediately  after  the  commisHion  of 
tlie  offense,  and  before  the  accused  has  been  offered  inducements  of  uny 
kmd,  ought  to  be  received  with  extreme  caution. 


f? 


4'' 


1  u 


(Crown  Case  Keserved.) 

Thk  Queen  v.  Silveblock. 

(2  L.  R.  (1804)  Q.  B.  766.) 

False  Pretenses:    Form  of  indict  nient — Evidence— Proof  of  hctndwritinj 
by  comparison— Skilled  witness— 2S  and  2'J  Vict,  c,  IS,  a.  S. 

1.  Acount  in  an  indictment  for  obtaining  a  cheque  by  false  pretenses  charsod 

that  the  defendant,  by  causing  to  be  inserted  in  a  newspaper  a  fraucUi- 
lent  advertisement  (setting  it  out),  did  falsely  pretend  to  the  subjects  of 
her  majesty,  the  queen,  that  (setting  out  the  false  pretense),  by  means 
of  which  last  mentioned  false  pretense  he  obtained  from  A,  a  clienuo. 

2.  Held,  that  the  count  was  good,  although  it  did  not  allege  tiiat  the  false 

pretense  was  made  to  a  particular  person.  Reg.  v.  Sowerby  (185)4), 
2  Q.  B.  173),  distinguished. 

3.  By  28  and  29  Vict.,  c.  18,  s.  8:    "  Comparison  of  a  disputed  writing  witli 

any  writing  proved  to  the  satisfaction  of  the  judge  to  be  genuine  shall  be 
permitted  to  be  made  by  witnesses;  and  such  writings,  and  the  evidence 
of  witnesses  respecting  the  same,  may  be  submitted  to  the  court  and 
jury  as  evidence  of  the  genuineness  or  otherwise  of  the  writing  in 
dispute." 

4.  Held,  that  a  witness  giving  evidence  under  this  section  need  not  be  a  pro- 

fessional expert,  or  a  person  whose  skill  in  the  comparison  of  hand- 
writings has  been  gained  in  the  way  of  his  profession  or  business. 

Case  stated  by  the  chairman  of  Quarter  Sessions  for  the 
County  of  AVorcester,  from  which  the  following  facts  ap- 
peared : 

The  defendant  was  tried  upon  an  indictment  containing  two 
counts  for  obtaining  a  cheque  by  false  pretenses.  The  first 
count  was  in  the  ordinary  form,  and  alleged  a  false  pretense 
to  Kosa  Alice  Coates,  and  an  obtaining  of  the  cheque  from 
her  by  means  of  the  false  pretense.  The  second  count  charged 
that  the  defendant,  by  inserting  and  causing  to  be  inserted 
in  a  certain  newspaper  called  the  Christian  World,  a  fraudu- 


THE  QUEEN  v.  SILVERLOCK. 


277 


lent  advertisement  in  the  words  and  figures  following,  that  is 
to  say,  "Housekeeper  wanted  for  branch  business  establishment 
in  Midlands;  one  from  country  preferred.  Address  S.  C, 
Christian  World  olHco,"  did  falsely  pretend  to  [he  subjects  of 
her  majesty,  the  queen,  that  he,  the  said  Geovj^e  Silverlock, 
then  re(|uire(l  a  housekeeper  for  a  branch  business  establish- 
ment in  the  Midlands,  by  means  of  which  said  last  mentioned 
false  pretense  the  said  George  Silverlock  did  then  unlawfully 
obtain  from  the  said  Ilosa  Alice  Coates,  a  certain  valuable 
security,  etc. 

IJefore  the  defendant  pleaded,  his  counsel  applied  to  have 
the  second  count  quashed,  on  the  ground  that  it  was  not  stated 
therein  that  the  false  pretense  was  made  to  any  definite  per- 
son but  to  all  the  subjects  of  her  mtajesty,  the  Queen,  and 
that  therefore  it  was  bad  in  law  on  the  authority  of  liey.  v. 
Sotvet'ht/,  supra.     The  chairman  overruled  the  objection. 

It  became  necessary  to  prove  that  certain  documents  were  in 
the  defendant's  handwriting;  and  to  do  this  the  prosecution 
called  as  a  witness  a  police  superintendent  who  produced  a  let- 
tor  and  envelojw  that  he  had  seen  the  defendant  write,  and  a 
bttcr  that  the  defendant  had  told  the  witness  was  in  his  hand- 
writing. It  was  then  proposed  to  prove  a  draft  advertisement 
of  "S,  C,"  and  certain  letters  alleged  to  bo  in  the  defendant's 
handwriting  by  com|>arison  of  the  handwriting  of  the  adver- 
tisement and  lettere  with  4he  admitted  handwriting  of  the 
defendant,  and  the  solicitor  for  the  prosecution  was  called  as 
an  ex))ert  for  this  purpose.  It  was  objected  that  the  solicitor 
was  not  an  expert,  and  could  not  give  evidence  as  to  his  opin- 
ion. The  solicitor  said  that  he  had,  since  1 884,  quite  apart  from 
his  professional  work,  given  considerable  study  and  attention 
to  handwriting,  and  especially  to  old  Parish  registers  and  wills, 
and  had  on  several  occasions  professionally  compared  evidence 
in  handwriting,  but  had  never  before  given  evidence  as  to 
handwriting;  also  that  he  had  formed  an  opinion  that  the 
defendant  was  guilty  before  he  had  begun  to  compare  the  hand- 
writing. The  objection  was  overruled,  and  the  evidence  was 
admitted.    The  jury  convicted  the  defendant.' 

The  questions  of  law  for  the  opinion  of  the  court  were — (1) 
Whether  an  indictment  for  false  pretenses  by  advertisement 

'  It  appeared  that  a  general  verdict  neither  taken  nor  entered  separately 
was  taken,  and  that  the  verdict  was  on  each  count. 


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278 


AMERICAN  CRIMINAL  REPORTS. 


must  allege  a  specific  person  to  whom  the  false  pretense  was 
made,  or  whether  an  indictment  for  such  offense  alleging  a  false 
pretense  to  all  the  Queen's  subjects,  was  good  in  law.  (2) 
Whether  it  was  necessary,  in  the  case  of  proving  handwriting 
by  cojnparison,  for  the  person  who  draws  attention  to  the 
points  of  resemblance  to  be  a  professional  expert,  or  a  jwrson 
whose  ordinary  business  leads  him  to  have  si^ecial  expei'ience 
in  questions  of  handwriting,  or  whether  the  evidence  of  iinv 
])er8on  who  has,  or  states  he  has,  for  some  years  studied  haiul 
writing,  would  be  admissible  for  that  purpose. 

Marc/mnt,  for  the  defendant.  The  second  count  is  bad;  it 
does  not  contain  an  allegation  of  the  person  to  whom  tho  I'also 
pretense  was  made,  which  is  a  material  and  necessary  aver- 
ment. Jieg.  V.  Sowerhj,  supra;  an  allegation  that  it  was  made 
to  all  the  Queen's  subjects  is  too  vague,  and  is  insufficient. 

Secondly,  tiie  evidence  of  the  solicitor  was  not  admissible 
under  28  &  29  Vict.  c.  18,  s.  8.'  The  witness  was  not  an  ox- 
pert.  In  order  to  give  evidence  on  matter  of  opinion,  a  wit- 
ness must  be  not  only  skilled,  but  he  must  be  skilled  by  virtue 
of  his  business;  he  must  be  an  expert,  liey.  v.  llarvcy;  "  ii'*  y. 
V.  Wilbaln.* 

The  mere  study  of  a  science  or  art  does  not  make  a  man  ca- 
pable of  giving  evidence  upon  it.  Bristow  v.  Sequevllle,^ 
Avhere  a  witness  who  had  studied  foreign  law  in  a  foreijrn 
university,  but  was  not  a  lawyer  by  profession,  was  held  inca- 
pable of  giving  evidence  as  to  what  tho  law  of  tho  foreign 
country  was. 

Vauohan  Williams,  J.  "No  one  should  be  allowed  to  give 
evidence  as  an  expert  unless  his  profession  or  course  of  study 
gives  him  more  opportunity  of  judging  than  other  people.  Is 
not  a  solicitor  in  that  position  ? 

No,  the  study  of  handwriting  is  no  part  of  his  business. 

'  By  28  &  29  Vict. ,  c.  18,  s.  8  (which  of  witnesses  respecting  the  same,  may 

by  8.  1  applies  to  all  courts  of  criminal  be  submitted  to  the  court  and  jury  na 

judicature),   "comparison  of  a  dis-  evidence  of  the  genuineness  or otlier- 

puted    writing   with    any   writing  wise  of  tlie  writing  in  dispute." 

proved  to   the   satisfaction   of   the  *  1 1  Cox,  546. 

judge  to  be  genuine,  shall  be  per-  *  9  Cox,  448. 

mitted   to  be   made   by  witnesses;  *  5  Ex.  276. 
and  sucL  writings,  and  the  evidence 


THE  QUEEN  v.  SILVERLOCK. 


270 


Ifoalso  citoil  Rowley  v.  Lomhn  and  North  Westorn  Hij.  Co., 
Law  Iii*|).,  8  Ex.  221;  Boston  Evidence,  8th  od.,  p. 4<{7;  Stephen 
on  Kviilonco,  4th  ed.,  p.  58;  Taylor  on  Evidence,  8tli  ed.,  s. 
1870. 

Var/u'Il,  for  the  prosecution,  was  desired  to  confine  his  argu- 
ment to  tlie  first  point.  The  count  is  good;  it  sets  out  tiie 
ttctiiiil  facts,  instead  of  alleging  a  legal  fiction.  It  was  unneces- 
sarv  to  allege  that  the  false  pretense  by  advertisement  was 
made  to  a  ])articular  person,  for  at  the  time  of  advertising 
there  was  no  ])articular  person  whom  the  defendant  desired  to 
defraud.  There  is  sutHciont  in  the  count  to  show  that  the 
false  ])retense  was  made  to  the  person  from  whom,  as  is 
alleged  in  the  count,  the  money  was  obtained.  AVy.  v.  Sowerhy, 
1SJ>4,  Q.  B.  173,  is  not  in  point;  for  there  was  in  that  case  no 
averment  of  the  person  from  whom  the  money  was  obtained, 
and  it  was  impossible  to  cure  the  omission  of  the  averment  of 
the  ]>orson  to  whom  the  false  pretense  was  made.  (IIo 
referred  to  Reg.  v.  Coopcf^  12  B.  D.  19.) 

Loan  RirssKLi-,  of  Kim.owen,  C.  J.  I  am  of  opinion  that  this 
conviction  should  be  affirmed.  The  defendant  was  tried  at 
Quarter  Sessions  upon  an  indictment  containing  two  counts. 
The  first  count  stated  in  an  unobjectionable  way  that  the  de- 
fendant made  a  false  pretense  to  liosa  Alice  Coates;  that  it  was 
false  to  his  knowledge,  and  that  on  the  face  of  it,  he  obtained 
from  her  a  cheque  for  £5.  The  second  count,  which  alone  we 
have  to  consider,  alleges  that  he  inserted  an  advertisement  in 
a  newspaper,  setting  out  the  terras  of  the  advertisement,  and 
that  by  means  of  the  advertisement,  he  falsely  pretended  to  the 
subjects  of  Her  Majesty,  the  Queen,  that  he  required  a  house- 
keeper, by  means  of  which  false  pretense  he  obtained  the  cheque 
from  llosa  Alice  Coates.  At  the  trial,  no  objection  Avas  or  could 
have  been  taken  to  the  first  count;  but  the  second  count  was 
objected  to  .as  being  insufficient,  and,  as  the  verdict  was  taken 
and  entered  generally  and  not  separately  on  each  count,  the 
conviction  must  be  quashed  if  that  count  is  bad. 

There  is  no  doubt  as  to  what  are  the  essentials  of  the  offense 
of  obtaining  money  by  false  pretenses.  There  must  be  a  false 
pretense  made  to  a  definite  person,  and  it  must  be  proved  that 
such  person  on  the  faith  of  the  false  pretense  parted  with  his 


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WW 


280 


AMERICAN  CRIMINAL  REPORTS. 


1 

ii 


money  or  goods.  Those  essentials  must  be  stated  in  the  count 
charging  the  offense,  and  the  question  liere  is,  whether  the 
second  count  complies  with  these  conditions.  I  can  not  say 
that  I  have  felt  no  doubt  or  hesitation  upon  the  matter,  but 
upon  the  whole  I  think  that  the  count  does  sufficiently  state  the 
offense.  The  advertisement  is  addressed  to  all  jjcrsons  to 
Avhose  knowledge  it  may  come,  and  who  nuiy  desire  to  act 
upon  it,  and  if  a  particular  person,  after  seeing  or  hearing  it, 
acts  upon  it,  and  goes  to  the  person  from  whom  it  ])roceeds, 
and  upon  the  faith  of  it  parts  with  his  money  or  goods,  it  be- 
comes an  advertisement  to  that  particular  person,  who  is  one 
of  the  class  of  persons  for  whom  it  was  intended.  Does  that 
sufficiently  appear  in  this  count?  I  think  that  it  does;  it 
states  that  the  defendant  procured  the  insertion  of  the  adver- 
tisement, that  by  so  doing  he  made  a  false  pretense  to  Ilor 
Majesty's  subjects,  and  proceeds  with  the  important  averment 
that  by  means  of  that  false  ])retense  he  obtained  a  che(]ue 
from  llosa  Alice  Coates.  I  think,  therefore,  that  this  count 
does  satisfy  the  requirement  of  the  law  by  stating  the  essential 
conditions  of  the  offense,  although  I  feel  bound  to  add,  that  it 
is  loosely,  inartistically,  and  anything  but  clearly  drawn. 

The  case  of  Jierj.  v.  Sowei'ly  (1S94),  2  Q.  B.  173,  was  referred  to 
during  the  argument.  We  should,  of  course,  regard  that  de- 
cision, if  in  point,  as  a  binding  authority;  but  when  it  conios 
to  be  examined  it  proves  to  be  no  authority  at  all  for  the  de- 
fendant's contention.  In  that  case  two  essential  averments 
were  wanting.  In  the  first  place,  there  was  no  allegation  that 
the  fa'se  pretense  was  made  to  any  ])erson;  whereas  here  it  is 
alleged  to  have  been  made  to  all  the  Queen's  subjects — an 
allegation  which  becomes  particular  as  regards  the  particular 
person  who  acts  upon  it;  and  secondly,  the  indictment  in  Jieij. 
V.  Soicerh/,  supra,  does  not  contain  the  material  allegation  of 
the  person  from  whom  the  money  was  obtained — an  averment 
which  appears  in  the  count  under  consideration.  The  decision  in 
lieg.  V.  Sowerhy,  sujyra,  therefore,  only  came  to  this,  that  in  the 
absence  of  these  two  material  allegations  the  count  was  insuffi- 
cient, and  therefore  bad. 

We  now  come  to  the  second  objection,  as  to  the  proof  of  the 
handwriting,  which  affords  a  good  illustration  of  that  class  of 
evidence  called  evidence  of  opinion.  It  is  true  that  the  wit- 
ness who  is  called  upon  to  give  evidence  founded  on  a  com- 


THE  QUEEN  v.  SILVERLOCK. 


281 


parison  of  handwritings  must  be/>e?'?'<j«.s;  he  must  be  skilled  in 
(loinjL?  so;  but  we  can  not  say  that  he  must  have  become  jxri- 
tus  in  the  way  of  his  business,  or  in  any  dofinit3  way.  The 
question  is,  is  \\q  perltusf  Is  he  skilled  i  Has  he  an  adequate 
know-lodge  ?  Looking  at  the  matter  practically,  if  a  witness  is 
nat  skilled,  the  judges  will  tell  the  jury  to  disregard  his  evi- 
dence. There  is  no  decision  which  requires  that  the  evidence 
of  a  man  who  is  skilled  in  comparing  handwriting,  and  who  has 
formed  a  reliable  opinion  from  past  experience,  should  be  ex- 
cluded because  his  experience  has  not  been  gained  in  the  Avay 
of  his  business.  It  is,  however,  really  unnecessary  to  consider 
this  point;  fo:  it  seems  from  the  statement  in  the  present  case, 
that  the  witness  was  not  only  perltm,  but  was  peritus  in  the 
way  of  his  business.  When  once  it  is  determined  that  the  evi- 
dence is  admissible,  the  rest  is  merely  a  question  of  its  value 
or  weight,  and  this  is  entirely  a  question  for  the  jury,  who 
will  attach  more  or  less  weight  to  it  according  as  they  believe 
the  witness  to  be  perltm.  Two  cases  have  been  cited,  one  as 
containing  a  decision  of  Blackburn,  J.,  the  other  (an  Irish 
case)  a  decision  of  Pigot,  C.  B.;  but  neither  of  them  is  an 
authority  for  the  proposition  contended  for;  they  come  only  to 
this — that  in  each  case  the  witness  was  a  policeman,  and  that 
the  judge  thought  that  unde»  .he  circumstances  of  the  case  his 
evidence  was  not  such  as  ought  to  be  received.  I  think, 
thei'cforo,  that  there  has  been  hero  no  mis  reception  of  evi- 
dence, and,  as  the  second  count  is  good,  the  conviction  must 
stand. 


;.:ftl|;-!  -■ ' 


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!»;5i 


^NrATUKW,  J.  I  am  of  the  sam3  opinion.  The  first  question 
is  the  only  one  which  presents  any  real  ditti3ulfcy,  and  the 
ditflc'ulty  might  have  been  avoided  had  the  verdict  been  taken 
separately  on  each  count — a  practice  that  it  is  important  to 
bear  in  mind,  seeing  that  we  are  still  hampered  with  regaixl  to 
indictments  by  the  rules  of  pleading,  which  were  in  force  in 
civil  actions  before  the  Common  Law  Procedure  Act.  In  an 
action  for  deceit,  it  was  necessary  to  state  with  particularity 
all  the  ingredients  which  went  to  make  up  the  defendant's  liabil- 
ity, and  in  an  indictment  for  false  pretenses  the  ingredients  of 
the  olFense  must  be  set  forth  in  the  same  way.  There  is  an 
excel  kMit  description  of  the  requirements  of  the  law  in  this 
respect  in  the  judgment  of  the  present  master  of  the  rolls  in 


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2S2 


AMERICAN  CRIMINAL  REPORTS. 


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i?<'i/.  I'.  Anpinall,  2  Q.  B.  D.  4S,  where  that  learned  judge  says: 
"  To  support  a  charge  of  obtaining  money,  etc.,  b}'  falsa  pre- 
tenses, it  is  necessary  to  show,  and  therefore  to  allege,  that 
the  prisoner,  with  a  wicked  or  criminal  mind,  stated  sometliinff 
Avhich,  if  true,  would  be  an  existing  fact;  that  he  did  so  with 
intent  to  procure  the  possession  of  money,  etc.;  that  he  knew 
his  statement  was — that  is  to  say,  that  so  far  as  his  mind  was 
concerned,  he  intended  that  his  statement  shoukl  be — false;  that 
by  the  statement,  he  did  so  act  on  the  mind  of  the  prosecutor 
as  that  he  did  thereby  obtain  money,  etc.;  that  the  statement 
was  in  fact  untrue  in  the  sense  of  heing  incorrect."  If  we 
take  the  present  count,  it  is  clear  that  it  offends  against  the 
old  rules  which  were  applicable.  But  there  is  this  important 
qualification — that  although  after  verdict  Ave  can  not  sujjply 
an  absent  averment,  an  impc  "feet  averment  may  be  treated  as 
cured  by  verdict.  In  the  present  case  it  is  not  shown  in  the 
second  count  how  the  money  was  obtained  in  consequence  of 
the  advertisement;  but  that  is  clear  from  the  first  count,  upon 
which  the  accused  was  convicted,  and  we  are  therefore  entitled 
to  infer  that  the  jury  had  all  the  facts  before  them,  and  that 
it  was  in  consequence  of  the  advertisement  that  she  parted 
with  her  money.  In  connection  with  this,  the  same  learned 
judge  says,  in  Reg.  v.  Asjnnall,  stipra:  "There  is  another 
rule  with  regard  to  pleading  which  must  be  enunciated — the 
rule  wnth  regard  to  the  effect  to  be  given  to  pleadings  after 
verdict.  It  is  thus  stated  in  IFeymann  v.  Beg.,  8  L.  K.,  Q.  B. 
102 :  '  Where  an  averment,  which  is  necessary  for  the  support 
of  the  pleading,  is  imperfectly  stated,  and  the  verdict  on  an 
issue  involving  that  averment  is  found,  if  it  appears  to  the 
court  after  verdict  that  the  verdict  could  not  have  been  found 
on  this  issue  without  proof  of  this  averment,  then,  after  ver- 
dict, the  defective  averment,  which  might  have  been  bad  on 
demurrer,  is  cured  by  the  verdict.'  Upon  this  it  shouhl  be 
observed  that  the  averment  spoken  of  is  'an  averment  imper- 
fectly stated,'  i.  e.,  an  averment  which  is  stated,  but  which  is 
imperfectly  stated.  The  rule  is  not  applicable  to  the  case  of 
the  total  omission  of  an  essential  averment."  That  is  dis- 
tinctly applicable  to  the  present  case,  and  if  any  further 
authority  were  wanted  it  would  be  found  in  Hamilton  v.  lieg., 
9  Q.  B.  271. 
It  is  necessary  to  say  a  word  about  Reg.  v.  Soioerhj,  snpra. 


THE  QUEEN  v.  SILVERLOCK. 


283 


The  distinction  between  that  case  and  the  present  is,  that  in 
that  case  averments  were  absent  which  were  indispensable  to 
the  statement  of  the  offense,  and  which  could  not  be  supplied — 
averments  of  the  person  to  whom  the  false  pretense  was  made, 
and  of  the  person  from  whom  the  money  Avas  obtained.  Had 
the  defendant  been  acquitted  on  that  count,  and  subsequently 
prosecuted  for  the  same  offense  upon  a  good  count,  there  might 
have  been  a  difficulty  in  the  way  of  the  defense.  That  decis- 
ion is  no  authority  in  the  present  case. 

Upon  the  other  point,  as  to  the  proof  of  the  defendant's 
handwriting,  I  am  of  opinion  that  the  evidence  was  clearly 
admissible. 

Day,  J.    I  concur  in  the  judgment  pronounced  by  my  lord. 

Yauohan  Williams,  J.  I  am  of  the  same  opinion,  and  I  only 
desire  to  say  that  in  my  opinion  it  seems  unnecessary  to  refer 
to  the  principle  of  the  correction  of  an  imperfect  averment 
after  verdict,  because  the  second  count  of  the  indictment, 
though  inartistic,  is  in  my  judgment  sufficient. 

Kennedy,  J.    I  concur  in  the  judgment  of  my  lord. 

Conviction  aiRrmed. 

Bernard  King  <j6  Son,  Stourbridge,  solicitors  for  the  prose- 
cution. 
Gari'att  Dudley,  solicitor  for  defendant. 

Note. — What  are  indict alile  false  ]}retcnses. — There  are  numerous  defini- 
tions given  of  indictable  false  pretenses,  and  there  seem  to  be  many  nice 
and  ratlier  "  shadowy  distinctions,  the  sound  reasoning  and  good  sense  of 
which"  are  not  easily  discoverable.  The  one  given  by  Mr.  Bishop  in  his 
work  on  Criminal  Law  (volume  2,  §  415),  is  as  satisfactory  as  any  that  is  to 
be  found:  "A  false  pretense  is  such  a  fraudulent  representation  of  an 
existing  or  past  fact  by  one  who  knows  it  not  to  be  true,  as  is  adapted  to 
induce  the  person  to  whom  it  is  made  to  part  with  something  of  value." 
Tile  contention  that  a  pretense,  though  false,  and  made  for  the  purjiose  of 
defrauding,  which  would  not  have  misled  the  person  to  whom  made  had 
he  exercised  "  ordinary  prudence  and  caution,"  is  not  sutficient,  although 
supported  by  many  authorities,  is  not  well  grounded.  The  better  rule  per- 
mits the  jury  to  consider,  from  tlie  facts  and  circumstances  of  a  given  case, 
what  was  the  effect  of  the  false  representations  upon  the  mind  of  the  person 
defrauded,  and  what  was  the  result.    Did  he  rely  upon  the  false  pretenses, 


:!? 

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284 


AMERICAN  CRIMINAL  REPORTS. 


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and  was  he  defrauded  thereby  ?  •'  Wliether  the  prosecutor  '  had  the  iiionnH 
of  detection  at  hand,'  or  whether  '  the  pretenses  were  of  such  a  chaiactor 
a<  to  impose  upon  him,'  are  questions  of  fact,  to  be  left  to  the  jury,  as  tliey 
nmst  necessarily  vary  with  the  particular  case,  »  »  »  The  statuto 
assumes  some  defect  in  caution,  for,  if  there  were  perfect  caution,  no  false 
pretenses  could  take  effect."  Whart.  Cr.  Law  (9th  Ed.),  §  1188.  The  pri"- 
tense  "need  not  be  such  an  artificial  device  as  will  impose  on  a  man  of 
ordinary  caution,  *  *  ♦  and  need  not  be  calculated  to  deceive  a  i)eison 
of  ordinary  prudence  and  caution.  *  *  *  It  is  impossible  to  estimate  a 
false  pretense  otherwise  than  by  its  effect.  *  •  *  A  court  can  not,  with 
due  regard  to  the  facts  of  human  life,  direct  a  jury  to  weigh  a  pretenso,  an 
argument,  an  inducement  to  action,  in  any  other  scale  than  that  of  its 
effect."  3  Bish.  Cr.  Law  (8th  Ed.),  g  436.  "  If  the  false  pretenses  were 
made  with  the  design  of  deceiving,  and  thereby  obtaining  credit  or  jirop- 
erty,  and  have  that  effect,  the  guilty  party  can  not  escape  on  the  ground  of 
the  weak  credulity  of  his  victim."  State  v.  Fookn,  50  Iowa  196,  452. 
Whenever  a  party  does  not  rely  upon  the  representations  of  defendant,  but 
undertakes  to  investigate  for  himself,  is  he  bound  by  the  result  of  such 
investigation  ?  It  is  quite  well  settled  that  the  false  representations  need 
not  be  the  only  moving  cause  which  induc3s  another  to  part  with  his  prop- 
erty. Donohoo  V.  Slate  (Ark.),  27  S.  W.  220;  Woodbury  v.  State,  69  Ala. 
242;  State  v.  Fooks,  supra;  People  v.  Hai/ncs,  14  Wend.  547;  In  re  Snyiler, 
17  Kan.  543;  Smith  v.  State,  55  Miss.  513;  People  v.  Oyer  <fe  Terminer  Co. 
Ct.,  83  N.  Y.  436.  Other  considerations  may  mingle  with  the  false  pretense, 
having  an  influence  u;x)n  the  mind  and  conduct  of  the  prosecutor;  yet  if. 
in  the  absence  of  the  false  pretense,  he  would  not  have  parted  witli  iiis 
property,  the  crime  is  complete-  On  the  other  hand,  if,  without  the  false 
pretense,  he  would  have  parted  with  his  property,  if  the  false  pretense  is  not 
an  operative  moving  cause  of  the  transfer,  if  he  did  not  rely  and  act  upon 
it,  there  may  be  falsehood,  but  there  ia  not  crime.  Woodbury  v.  State, 
supra;  Whart.  Cr.  Ev.,  §  131. 

False  pretenses  and  promise  made  together. — When  a  pretense  and 
promise  are  made  together,  and  both  operate  in  the  inducement,  the 
case  is  within  the  statute,  if  the  pretense  of  a  false  existing  or  past  fact  be 
sufficient.  Com.  v.  Wallace,  114  Pa.  St.  405;  7  Am.  Cr.  Rep.  179;  Com.  v. 
Moore,  4  Am,  Cr.  Rep,  230. 


KOBERTSON  V.  pKOPLE. 


Enactment  of  Statute: 


(20  Colo.  279.) 

OF  STATUTE :    Validity — O^cer  of  insolvent  Ikink— Receiving 
deposit — Criminal  prosecution — Class  legislation. 

1.  On  an  issue  as  to  whether  an  act  was  passed  in  conformity  with  the 
constitutional  requirements  as  to  procedure,  resort  may  be  had  to  the 
journals  of  the  two  houses  of  tlie  legislature,  to  ascertain  the  steps 
taken  by  each  in  its  passage. 


ROBERTSON  v.  PEOPLE. 


285 


2.  Compliance  with  Const,  art.  5,  §  22,  which  proviiles  that  "  No  bill  shall 

become  a  law  except  by  vote  of  a  majority  of  all  the  nieml)ers  elected 
to  each  house;  nor  unless  on  its  final  passage  the  vote  be  taken  on  ayes 
and  nays  and  the  names  of  those  voting  be  entered  on  the  journal."  is 
sliown  by  evidence  that  the  house  passed  a  bill  as  it  came  from  the 
senate,  with  an  amendment  thereto,  by  an  aye  and  nay  vote,  and  by 
another  aye  and  nay  vote  receded  from  its  amendment  after  an  unsuc- 
cessful conference  thereon. 

3.  Laws  1885,  p.  50,  providing  for  the  punishment  of  a  paraon  receiving  d3- 

posits  in  a  bank  with  knowledge  of  its  insolvency,  is  not  unconstitu- 
tional as  being  class  legislation. 

4.  Imprisonment  under  Laws  1885.  p.  50,  for  receiving  deposits  in  a  1  ank 

witii  knowledge  of  its  insolvency,  is  for  a  misdemeanor,  and  not  for  a 
debt,  so  as  to  come  within  the  constitutional  prohibition. 

5.  Tiie  legislature  has  power  to  vit-clare  that  the  failure  of  any  bank  withn 

tliirty  days  from  the  time  a  deposit  wtis  made  sliall  be  prima  facie  evi- 
dence of  knowledge  on  the  part  of  the  banker  that  the  bank  was  insolv- 
ent at  the  time  the  deix)sit  was  made. 

Error  to  District  Court,  Fremont  County. 

"William  E.  Robertson  was  convicted  of  receiving  a  deposit 
in  the  Chaffee  County  Bank,  of  which  he  was  manager,  from 
Jaiii3s  Taggjrt,  kno.vin'^  at  tho  tims  he  racaived  it  that  the 
bank  was  insolvent,  and  brings  error.    Ailirmed. 

The  ])laintiiT  in  error  was  convicted  for  receiving  a  deposit 
of  8251.70  from  one  Jamas  Taggeri,  in  the  Chaffee  County 
l>ank,  of  which  he  was  at  the  time  the  owner  and  manager, 
knowing  at  the  time  tliat  said  bank  was  insolvent.  The  pros- 
ecution was  had  under  the  act  entitled  "  An  act  to  provide  for 
the  punishment  of  a  person  receiving  deposits  in,  or  creating 
indebtedness  by,  any  bank  or  banking  institution  with  knowl- 
0  lire  of  the  '  isolvencv  of  such  bank  or  bankintj  institution," 
approved  A]>ril  7,  1885,  and  found  on  page  50  of  the  Session 
L'lws  of  1885.  The  information  upon  which  the  prosecution 
was  based,  omitting  the  formal  parts,  was  as  follows :  "  That 
William  E.  Robertson,  late  of  the  county  of  Chaffee  and  state 
aforesaid,  on,  to  wit,  the  30th  day  of  June  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  ninety-three,  then  and 
there  being  a  banker,  and  manager  and  cashier  of  a  certain 
bank  and  banking  institution  doing  banking  business  under 
the  name  and  style  of  the  Chaffee  County  Bank,  in  the  county 
of  Chaffee  and  State  of  Colorado,  he,  the  said  William  E.  Rob- 
ertson, being  the  only  person  known  to  the  district  attorney 
ojierating  and  owning  the  said  bank  and  banking  institution, 
did  then  and  there  fraudulently,  knowingly,  and  feloniously 


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286 


AMERICAN  CRIMINAL  REPORTS. 


receive  and  assent  to  the  reception  of  a  certain  deposit  of 
money,  to  wit,  the  sum  of  two  hundred  and  fifty-four  dollars 
and  seventy  cents  in  money,  of  the  value  of  two  hundred  and 
fifty-four  dollars  and  seventy  cents,  of  the  personal  property 
and  moneys  of  one  James  Taggert,  by  said  banker  and  in  said 
bank  and  banking  institution,  the  said  banker,  bank  and  bank- 
ing institution  then  and  there  being,  and  for  a  long  time  prior 
thereto,  insolvent,  and  that  he,  the  said  William  E.  Robertson, 
at  the  time  and  before  the  reception  of  the  deposit,  had  full 
knowledge  of  the  fact  that  the  said  banker,  bank,  and  bankinjr 
institution  were  insolvent;  and  so,  in  manner  and  form  and  by 
the  means  aforesaid,  he,  the  said  "William  E.  Robertson,  did 
then  and  there  felonioush'^  steal,  take,  and  carry  away  the  said 
two  hundred  and  fifty-four  dollars  and  seventy  cents  in  money, 
of  the  value  of  two  hundred  and  fifty-four  dollars  and  seventy 
cents,  of  the  personal  property  and  moneys  of  the  said  James 
Taggert,  contrary  to  the  form  of  the  statute  in  such  case  made 
and  provided,  and  against  the  peace  and  dignity  of  the  same 
people  of  the  State  of  Colorado."  The  sutticiency  of  the  in- 
formation, in  matter  of  form,  is  not  questioned,  but  a  motion 
to  quash  was  interposed  upon  the  following  grounds :  "  That 
the  facts  alleged  in  said  information  do  not  constitute  any 
criminal  offense  at  common  law,  or  under  the  statutes  of  the 
State  of  Colorado.  That  the  statute  upon  which  said  inf urina- 
tion is  based  is  unconstitutional  and  void  in  this,  to  wit :  (1) 
Said  statute  undertakes  to  make  larceny  an  act  which  the  leg- 
islature had  no  power  to  make  larceny,  as  defined  and  liniitod 
by  the  common  law  and  the  statute  of  the  State  of  Colorado. 
(2)  Said  statute  is  special  and  class  legislation,  and  violates 
subdivision  24  of  section  25  of  article  5  of  the  constitution  of 
the  State  of  Colorado,  which  reads,  '  In  all  other  cases  where 
si  general  law  can  be  made  applicable,  no  special  law  shall  be 
enacted.'  (3)  Said  statute  is  in  violation  of  section  3  of  the 
bill  of  rights  of  the  constitution  of  the  State  of  Colorado, 
which  reads,  *  That  all  persons  have  certain  natural,  essential 
and  inalienable  rights,  among  which  may  be  reckoned  the  right 
of  enjoying  and  defending  their  lives  and  liberties;  that  of  ac- 
quiring, possessing  and  protecting  property,  and  of  seeking 
and  obtaining  their  safety  and  happiness.'  (4)  Said  statute  is 
in  violation  of  section  12  of  said  bill  of  rights,  which  reads, 
*No  person  shall  be  imprisoned  for  debt  unless 


# 


ROBERTSON  v.  PEOPLE. 


287 


where  there  is  a  strong  presumption  of  fraud.'  (5)  Said  stat- 
ute is  in  violation  of  section  25  of  said  bill  of  rights,  which 
reads, '  That  no  person  shall  be  deprived  of  life,  liberty  or  ])roi> 
erty,  without  due  process  of  law.'  (0)  Said  statute  is  in  vio- 
lation of  article  14  of  amendments  to  the  constitution  of  the 
United  States,  which  declares  (section  1),  "All  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States,  and  of  the 
state  wherein  they  reside.  No  state  shall  make  or  enforce  any 
law  which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shaH  any  state  deprive  any  per- 
son of  life,  liberty  or  property  without  due  process  of  law,  nor 
deny  to  any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  law.'  (7)  Said  statute  is  unconstitutional  and  void 
because,  in  its  present  form,  or  in  the  form  in  which  it  was 
signed  by  the  executive,  it  never  had  a  third  reading  in  the 
house  of  representatives  of  the  State  of  Colorado,  and  in  said 
form  was  never  placed  upon  a  third  reading  and  final  passage 
in  tlie  house  of  representatives,  as  ap])ears  by  the  journal  of 
said  house  of  representatives  for  the  year  A.  D.  18b5."  This 
motion  was  overruled,  and  the  same  questions  were  again  pre- 
sented upon  an  objection  to  the  introduction  of  any  evidence 
under  the  information  upon  the  trial,  and  again  by  a  motion 
for  new  trial  and  in  arrest  of  judgment.  Trial  resulted  in 
conviction,  and  the  plaintiff  in  error  was  sentenced  to  confine- 
ment in  the  penitentiary  for  the  term  of  one  year.  To  reverse 
this  sentence  and  judgment,  plaintiff  in  error  brings  the  case 
here  upon  error. 

Waldo  (&  J)aicson  and  ThcoiJorc  Martin,  for  plaintiff  in 
error. 

EtKjene  Eiufley,  Atty.  Gen.,  and  //.  T.  Sale,  Asst.  Atty.  Gen., 
for  the  People. 


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GoDDARD,  J.  (after  stating  the  facts).  It  is  urged  upon  this 
review  that  the  court  below'  erred  in  overruling  the  motion  to 
quash  the  information  and  the  motion  in  arrest  of  judgment, 
for  the  reasons  therein  assigned,  to  wit,  that  the  act  in  ques- 
tion was  never  enacted  in  accordance  with  the  requirements 
of  the  constitution  of  this  state;  and  second,  that  if  constitu- 
tionally enacted,  it  is  void  by  reason  of  conflict  with  the  con- 


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288 


AMERICAN  CRIMINAL  REPORTS. 


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stitutional  provisions  set  forth.  In  the  determination  of  tlio 
first  of  tiiese  objections,  we  agree  with  counsel  for  plaintilF  in 
error  that  resort  may  be  had  to  the  journals  of  the  two  liouses 
to  ascertain  the  steps  that  were  taken  by  each  of  these  bodies 
in  the  passage  of  the  act,  and  thereby  determine  whetlior  it 
was  passed  in  conformity  to  the  constitutional  requirements. 
This  doctrine  was  announced  as  the  law  in  this  state  in  Jie 
Jioberts,  5  Colo.  525,  and  again  recognized  in  the  case  of  iY**- 
Mt  V.  People,  19  Colo.  44^1,  36  Pac.  221.  An  examination  of 
the  journals  of  the  5th  general  assembly  discloses  that  the  bill 
for  the  act  was  introduced  in  the  senate,  and  regularly  passed, 
and  while  pending  in  the  house  the  same  was  amended  by 
adding  the  following  section  :  "  It  shall  be  the  duty  of  eacli 
and  every  bank,  banking  association,  firm  and  individual  do- 
ing business  as  bankers  in  this  state,  by  whom  deposits  of 
money,  or  its  equivalent,  are  or  shall  be  received,  to  publish  in 
a  news])aper  having  a  general  circulation  in  the  county  in 
which  such  business  is  or  shall  be  done,  on  the  first  days  of 
January,  April,  July  and  October  of  each  and  every  year,  a 
full  statement  of  the  assets  and  liabilities  of  such  bank,  bank- 
ing association,  firm  or  individual,  showing  the  amount  of 
capital  invested,  the  amount  of  deposits,  and  all  other  items 
that  will  tend  to  show  the  true  condition  of  such  banking  busi- 
ness. The  correctness  of  such  statement  shall  be  attested  by 
the  chief  managing  officer  of  the  business  of  such  bank  or 
banker" — and  with  this  amendment  was  regularly  passed  by 
the  house;  the  a3'cs  and  nays  being  called,  and  entered  upon 
the  journal.  Upon  its  return  to  the  senate  the  senate  refused 
to  concur  in  tlie  house  amendment,  and  thereupon  a  commit- 
tee of  conference  Avas  appointed  by  the  two  houses.  This  com- 
mittee recommended  that  the  house  recede  from  its  amendment. 
Upon  consideration  of  this  I'cport  by  the  house,  the  question 
being,  "  Shall  the  house  recede  from  the  amendment,  and  ado|)t 
the  report  of  the  committee  ? "  the  ayes  and  nays  were  had, 
and  entered  upon  the  journal,  and,  a  constitutional  majority 
voting  in  the  affirmative,  the  report  was  adopted. 

It  is  insisted  by  counsel  for  plaintiff  in  error  that  although 
the  house  passed  the  bill,  as  amended,  by  a  constitutional  ma- 
jority, and  afterward  receded  from  its  amendment  by  a  like 
vote,  by  its  failure  thereafter  to  repass  the  bill  there  was  a 
non-compliance  with  section  22,  art.  5,  of  the  ccnstitution, 


ROBERTSON  v.  PEOPLE. 


289 


which  provides,  inter  alia,  that  "  no  bill  shall  become  a  law 
except  by  vote  of  a  majority  of  all  the  members  elected  to  each 
house;  nor  unless  on  its  final  passage  the  vote  be  taken  by 
aves  and  nays,  and  the  names  of  those  voting  be  entered  on 
the  journal."  The  primary  purpose  of  this  provision  is  to 
secure  the  approval  of  a  bill  by  a  majority  of  the  members 
elected  to  each  house,  as  a  condition  to  its  becoming  a  law; 
and  when  the  procedure  had  in  the  respective  houses  has  ac- 
complished that  purpose,  and  a  bill  has  so  received  such  ap- 
proval, the  requirements  of  the  provision  have  been  complied 
with.  As  shown  by  its  journal,  the  house  passed  the  bill  as  it 
came  from  the  senate,  with  a  section  added,  in  strict  conform- 
ity to  tlie  constitutional  requirement,  by  a  vote  thereon  taken 
by  ayes  and  nays,  and  entered  on  the  journal,  thereb}'^  approv- 
ing the  bill,  including  the  amendment.  Thereafter,  by  an  aye 
and  nay  vote  entered  on  the  journal,  it  deliberately  receded 
from  its  amendment,  leaving  the  bill  intact  as  it  came  from 
the  senate,  thereby  evidencing  its  approval  of  the  same  with- 
out the  amendment.  We  think,  by  the  latter  vote,  the  house 
clearly  manifested  its  intention  to  recede  from  its  former  vote 
only  as  to  the  amendment,  and  leave  it,  in  so  far  as  it  was  an 
approval  of  the  first  section  of  the  bill,  undisturbed.  The  leg- 
islative will,  therefore,  having  been  expressed,  in  the  manner 
provided  by  the  constitution,  in  favor  of  the  bill  as  it  origi- 
nally passed  in  the  senate,  the  first  ground  of  objection  is  not 
well  tak'on. 

Counsel  cites  the  case  of  People  v.  De  Wolf,  G2  111.  253,  in 
support  of  his  contention;  but  from  a  careful  reading  of  that 
decision  it  will  bo  seen  that  the  reasoning  of  the  court  will  be 
found  to  sustain  the  view  we  have  taken.  The  facts  of  the 
case  are  very  like  the  facts  in  this  case.  The  bill  for  the  act 
under  consideration  therein  originated  in  the  house,  was 
a-nended  in  the  senate,  and  the  house  refusing  to  concur  in 
the  senate  amendment,  the  senate  undertook  to  recede  from 
its  amendment,  and  the  vote  thereon  was  23  for  and  16  against 
receding  therefrom.  The  number  of  senators  elected  to  and 
composing  the  senate  being  50,  it  was  therefore  necessary  for 
at  least  26  of  its  members  to  concur  in  the  final  passage  of  a 
bill;  and  the  court  held  that,  it  appearing  on  the  face  of  the 
journal  that  the  amendment  was  not  receded  from  by  a  consti- 
tutional majority,  such  veto  Avas  inoperative.  In  holding  the 
19 


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290 


AMERICAN  CRIMINAL  REPORTS. 


act  invalid,  the  court  say :  "  It  had  passed  the  bill  only  as 
amended.  It  does  not  follow  that  the  bill,  stripped  of  the 
amendment,  did  receive  or  would  have  received  the  assent  of  the 
constitutional  majority  of  the  senate.  *  *  <*  The  question 
is,  to  what  did  a  constitutional  majority  of  the  senate  give 
their  assent  ? "  It  is  fairly  inferable,  from  the  languaj^o  of 
the  court  used,  that  if  a  constitutional  majority  had  voted  for 
receding  from  the  amendment  the  bill  would  have  been  con- 
stitutionally passed.  That  such  was  the  effect  of  that  decis- 
ion, we  refer  to  the  language  used  by  Chief  Justice  "Walker  in 
commenting  upon  it  in  his  dissenting  opinion  in  the  case  of 
People  V.  Loeioenthal,  ^ZIW.  191.  He  says:  "In  that  case 
the  bill  originated  in  and  passed  one  house,  and  was  amended 
in  the  other,  and,  being  returned  to  the  house  in  Avliich  it 
originated,  that  house  refused  to  concur,  and  the  bill  was  re- 
turned to  the  house  which  made  the  amendment,  and  on  a 
motion  to  recede  the  motion  was  adopted  by  a  majority  of  a 
quorum,  but  not  by  a  majority  of  the  members  elect;  and  it 
was  held  that  the  bill  was  not  finally  passed  by  the  constitu- 
tional majority,  and  that  it  was  void.  In  that  case  we  see 
that  it  was  held  that  a  majority  of  all  the  members  elect  was 
essential  to  strike  out  the  amendment,  or  that  receding  from 
the  amendment  was  a  final  passage  of  the  bill,"  In  the  case 
of  Division  of  Howard  Co.,  15  Kan.  194 — identical  in  its  facts 
with  the  one  at  bar,  with  the  exception  that  the  bill  originated 
in  the  house  instead  of  the  senate — in  answer  to  the  same  ob- 
jection urged  against  the  validity  of  the  act,  that  court  say : 
"  We  think  that  the  provision  of  the  constitution  requiring 
that  *  the  yeas  and  nays  shall  be  taken,  and  entered  immedi- 
ately on  the  journal,  upon  the  final  passage  of  every  bill  or 
joint  resolution '  (article  2,  §  10),  was  sufficiently  complied 
Avith.  It  would,  of  course,  have  been  more  formal  if  the  sen- 
ate, after  receding  from  its  own  amendments,  had  again  put 
the  bill  upon  its  final  passage,  and  passed  the  bill  without  the 
amendments,  as  it  had  done  with  the  amendments.  But  the 
manner  in  which  this  bill  was  passed  has  always  been  acted 
upon,  and  if  we  should  now  hold  it  insufficient,  we  should 
probably  invalidate  a  very  large  proportion  of  all  the  laws  that 
have  ever  been  enacted  in  Kansas."  These  are  the  only 
cases  to  which  our  attention  has  been  called,  wherein  the 
adjudication  of  the  court  was  upon  facts  similar  to  those  in 


ROBERTSON  v.  PEOPLE, 


201 


iJ.  ! 


the  case  before  us;  but  scvei'jil  cases  involving  the  validity  of 
acts  passetl  in  liite  manner,  but  incorrectly  enrolled,  we  find 
support  the  view  we  have  announced.  S/nlf/nc  v.  CamjMl, 
41  Ark.  471;  Jones  v.  JFutcliinson,  43  Ala.  721;  Nelson  v.  Hay- 
wood  Co..  91  Tenn.  596,  20  S.  W.  1;  People  v.  Supervisors 
of  Chenamjo,  8  N.  Y.  317;  Stnte  v.  Jlarjood,  13  S.  C.  40, 

The  second  contention  is  that  the  subject-matter  of  the  act 
is  violative  of  several  constitutional  ])rovisions  of  this  state, 
and  especially  of  sections  12  and  25  of  the  bill  of  rights,  which 
guarantee  that  '*  no  person  shall  be  deprived  of  life,  liberty  or 
property  without  due  process  of  law,"  and  that  "  no  person 
sliall  be  imprisoned  for  debt  unless  *  *  *  where  there  is 
•  a  strong  presumption  of  fraud,"  and  also  of  article  14  of  the 
amendments  of  the  constitution  of  the  United  States,  which 
dechires  that  "  no  state  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States,  nor  shall  any  state  deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law,  nor  deny  to  any 
porson  within  its  jurisdiction  the  equal  protection  of  the  law." 
The  argument  is  that  the  act  in  Cjuestion,  by  making  the  in- 
hibited acts  a  crime  only  as  to  bankers,  is  class  legislation,  and 
renders  tliem  amenable  to  punisliment  for  acts  that  may  be 
done  by  others  with  impunity,  and  hence  deprives  them  of  their 
liberty  without  due  process  of  law,  or  without  the  sanction  of 
the  law  of  the  land.  We  think  this  claim  is  fallacious,  and  that 
the  act  is  not  within  the  class  of  legislation  inhibited  b}'  these 
provisions  of  the  constitution.  It  is,  in  a  sense,  class  legisla- 
tion, but  not  in  the  invidious  sense  that  renders  it  obnoxious  to 
the  objections  urged  here.  The  law  of  the  land  is  said  to  mean 
a  law  binding  upon  every  member  of  the  community  under 
similar  circumstances  ( Wallas  Heirs  v.  Kennedy,  2  Yerg.  554); 
and  when  the  law  applies  to  all  persons  engaged  ^'n  a  certain 
occupation  or  business,  and  each  one  is,  without  distinction, 
amenable  to  its  provisions  solely  because  he  pursues  such  oc- 
cupation or  business,  it  is  then  "  binding  upon  all  persons  of 
the  community  under  similar  circumstances."  Such  legislation 
lias  uniformly  been  upheld.  Judge  Cooley,  speaking  upon  this 
subject,  at  pages  482, 483,  of  his  work  on  Constitutional  Limita- 
tions, says :  "  The  legislature  may  also  deem  it  desirable  to 
l)rcscribe  peculiar  rules  for  the  several  occupations,  and  to 
establish  distinctions  in  the  rights,  obligations,  duties,  and 


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capacities  of  citizens.  Tho  business  of  common  carrici ->,  for 
instance,  or  of  bankers,  may  require  sjiecial  statutory  rej^ula. 
tions  for  the  ji^oneral  benelit,  and  it  may  be  matter  of  puldjc 
policy  to  ^ivo  laborers  in  one  business  u  specific  lien  for  their 
wa<,^es,  when  it  would  bo  impracticable  or  impolitic  to  do  the 
same  for  persons  engaged  in  some  other  emi)loynients.  If  the 
laws  bo  otherwise  unobjectionable,  all  that  can  bo  required  in 
these  cases  is  that  they  bo  general  in  their  ai)i)lication  to  the 
class  or  locality  to  which  they  apply;  and  they  are  then  ]»ul»lic 
in  cliaracter,  and  of  their  propriety  and  policy  the  legislaturo 
must  judge."  In  the  case  of  JAnt  v.  Wtoi  Viryitihi,  121)  U.  S. 
124,  the  Supremo  Court  of  the  United  States  say :  "  Legislation 
is  not  open  to  the  charge  of  dei)riving  one  of  his  rights  withoui 
due  process  of  law,  if  it  be  general  in  its  operation  upon  tlio 
subjects  to  which  it  relates."  And  in  the  case  of  State  v. 
Looiiiift,  il5  Mo.  3()7,  Judge  Dlack,  while  holding  llie  law  then 
under  consideration  to  be  unconstitutional,  as  violative  of  the 
constitutional  guaranty  of  due  process  of  law,  says:  "  There 
is  no  doubt  but  many  of  our  legislative  enactments  operate 
upon  classes  of  individuals  only,  and  they  are  not  invalid  be- 
cause they  so  operate,  so  long  as  the  classitication  is  reason- 
able, and  not  arbitrary.  Thus,  it  is  perf  !tly  competent  to 
legislate  co)icerning  married  women,  minors,  insane  persons, 
bankers,  common  carriers,  and  the  like."  The  case:,  in  wliith 
legislation  of  this  character  has  been  uphekl  are  too  numerous 
to  permit  of  special  mention.  Upon  a  careful  examination  of 
the  numerous  cases  cited  by  counsel  for  ])laintifr  in  error  in  his 
elaborate  and  exhaustive  brief,  we  find  no  case  that  questions 
tho  right  of  the  legislature,  in  the  exercise  of  the  police  power, 
to  regulate  or  prohibit  tho  business  of  banking.  On  the  other 
hand,  we  find  several  well-reasoned  cases  that  ui)hold  statutes 
of  the  character  under  consideration  as  being  clearly  within 
the  legislative  discretion,  and  a  proper  exercise  of  the  police 
power  of  tho  state.  In  tho  case  of  YounyUood  v.  Savings  Co., 
95  Ala.  521,  a  statute  that  made  it  a  misdemeanor  for  a  banker 
to  discount  any  note,  bill  of  exchange,  or  draft  at  a  higher  rate 
of  interest  than  eight  per  cent  per  annum,  was  upheld  as  a 
constitutional  enactment;  and  in  the  case  of  Baker  v.  State,  54 
Wis.  308,  a  statute  very  similar  in  its  terms,  and  of  the  same 
purport  and  effect  as  the  one  at  bar,  was  held  to  be  valid, 
and  not  obnoxious  to  the  constitutional  provisions  veiled  ou 


BODERTSON  v.  Pj:(jPLE. 


203 


by  plaintiff  in  error.  Judge  Cassoday,  speaking  for  the  court, 
says:  "  Tlie  manifest  object  of  tlio  statute  in  question  was 
to  suppress  the  business  of  banking  or  brokerage  by  any  in- 
solvent i)erson,  company,  or  corporation.  It  therefore  inflicts 
punislnnciit  upon   persons    so    engaged,  knowing  the  fact. 

*  *  *  A  bank  implies  capital,  and  capital  invites  conti- 
(Icnco.  A  man  holding  himself  ouit  as  a  banker  thereby  gives 
public  proclamation  that  he  has  money,  and  property  readily 
convertible  into  money,  in  his  possession  and  subject  to  his 
control,  and  for  that  reason  he  may  be  safely  trusted.  It  re- 
quires no  argument  to  show  that  such  assurance  is  most  inviting 
and  influential  with  the  mass  of  the  peo]>le, especially  with  those 
unacquainted  with  the  history  and  character  of  the  man.  With 
them  the  banker  *  *  *  is  intrusted  with  money  merely 
because  he  is  a  banker,  *  *  *  and  hence  supposed  to  have 
surplus  ca|)ital  as  a  standing  guaranty  of  his  agreements  and 
his  integrity.  For  an  insolvent  banker,  company,  or  corpora- 
tion to  continue  the  business  of  banking  is  to  hold  out  assur- 
ances of  resiMjnsibility  and  surplus  capital  where  neither  exists. 
To  do  so  knowingly  is  to  secure  the  confidence,  and  hence  ob- 
taui  the  money,  of  the  ignorant  and  unwary,  by  an  implletl 
de^,eption."  The  learned  judge  also  disposes  of  the  objection 
that  the  act  is  in  violation  of  section  12  of  the  bill  of  rights, 
which  reads,  "No  person  shall  be  imprisoned  for  debt  unless 

*  *  *  where  there  is  a  strong  presumi)tion  of  fraud,"  in 
the  following  language :  "  The  imprisonment  here  is  not  for 
any  debt,  *  *  *  but  upon  a  charge  of  an  act  made  a  mis- 
demeanor by  the  statute,  to  wit,  the  receiving  of  money  on 
deposit,  as  a  banker,  by  one  knowing  himself  or  such  bank  to 
be  insolvent.  The  case  manifestly  does  not  come  within  the 
prohibition  of  that  section." 

The  further  objection,  that  the  act  in  question  made  the  fact 
of  failure  of  the  bank  witliin  thirty  days  from  the  time  of  the 
de])osit  prima  facie  evidence  of  knowledge  on  the  part  of  the 
banker  that  the  bank  was  insolvent  at  the  time  of  the  recejition 
of  the  deposit,  is  also  untenable.  While  there  is  a  conflict  in  the 
decisions  upon  this  subject,  the  weight  of  authority  sustains  the 
power  of  the  legislature  to  declare,  even  in  criminal  cases,  what 
shall  be  presumptive  evidence  of  any  pertinent  fact.  We  think 
the  rule,  with  its  limitations,  is  correctly  announced  in  Board 
V.  Merchant,  103  N.  Y.  148,  as  follows :    "  The  general  power  of 


M 


Tr^"^^^fw 


294 


AMERICAN  CRIMINAL  REPORTS. 


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11  ;j 


the  legislature  to  prescribe  rules  of  evidence  and  methods  of 
proof  is  undoubted.    While  the  power  has  its  constitutional 
limitations,  it  is  not  easy  to  define  precisely  what  they  are. 
A  law  which  would  practically  shut  out  the  evidence  of  a  party, 
and  thus  deny  him  the  opportunity  for  a  trial,  would  substan- 
tially deprive  him  of  due  process  of  law.     It  woukl  not  bo  pos- 
sible to  uphold  a  law  wbich  made  an  act  prima /acio  evidence 
of  crime,  over  which  A)',   party  charged  had  no  control,  and 
with  which  he  had  no  connection,  or  which  made  that  prima 
facie  evidence  of  crime  which  had  no  relation  to  a  criminal  act, 
and  no  tendency  whatever,  by  itself,  to  prove  a  criminal  act. 
But  so  long  as  the  legislature,  in  prescribing  rules  of  evidence 
in  either  civil  or  criminal  cases,  leaves  a  party  a  lijir  opportu- 
nity to  make  his  defense,  and  to  submit  all  the  facts  to  tho  jury, 
to  be  weighed  by  them,  uj^on  evidence  legitimately  bearing 
upon  them,  it  is  dilHcult  to  perceive  how  its  acts  can  be  assailed 
upon  constitutional  grounds."     Also,  see  People  v.  Cannon,  13!) 
N.  Y.  32.     In  the  case  of  State  v.  Back,  120  Mo.  479,  the  court, 
in  passing  upon  the  precise  question  now  under  consideration, 
says :     "  The  act  which  makes  the  failure  of  any  ])rivate  bank 
jyrima  facie  evidence  of  the  knowledge  on  the  part  of  the 
owner,  agent  or  manager  of  any  private  bank  or  banking  in- 
stitution doing  business  in  this  state  that  the  bank  was  in 
failing  circumstances  or  insolvent  at  the  time  of  receiving  any 
deposit,  has  some  relation  to,  and  furnishes  some  evidence  of, 
tne  alleged  offense.    To  make  receiving  money  on  deposit, 
under  such  circumstances,  prima  facie  evidence  of  knowledge 
on  the  part  of  the  owner  of  the  bank  that  it  was  then  in  failing 
circumstances  or  insolvent,  violates  no  constitutional  guaranty."' 
Dodge  v.  3lastin,  5  McCrary  404;  Black,  Intox.  Liquors,  §  GO; 
/State  V.  Kingdey,  108  Mo.  135. 

Upon  a  full  investigation  and  consideration  of  the  questions 
urged  by  plaintiff  in  error,  we  can  ])erceive  no  valid  objection 
to  the  constitutionality  of  the  act  under  which  this  prosecution 
and  conviction  were  had,  either  in  the  manner  in  which  it  was 
passed,  or  in  its  subject-matter;  and  no  other  reasons  affecting 
the  validity  of  the  conviction  and  sentence  appearing,  the  judg- 
ment of  the  court  below  must  be  affirmed. 


STATE  V.  ODEN.  295 

State  v.  Oden. 

(10  Ind.  App.  136.) 

Extortion  by  Officer. 

An  inrlictment  against  an  officer  for  receiving  excessive  feea,  must  allege 
tluit  the  fees  were  claimed  to  be  due  aa  fees  for  official  services. 

Appeal  from  Circuit  Court,  Boone  County;  Stephen  Neal, 
Judge. 

A.  G.  Smith,  Attorney-General,  and  P.  H.  Dutch,  Prose- 
cuting- Attorney,  for  the  State. 

GvviN,  J.  The  appellee  was  indicted  under  section  2018, 
Rev.  St.  18S1,  being  section  2115,  Rev.  St.  189-1,  for  extortion, 
in  receiving  legal  fees.  Upon  his  motion  the  indictment  was 
(juashod.  This  ruling  constitutes  the  error  upon  which  this 
appeal  is  grounded. 

The  statute  provides  that  "  any  officer  under  the  constitution 
or  laws  of  this  state  who,  by  color  of  his  office,  asks,  demands 
or  receives  any  fee  or  award,  other  than  is  allowed  by  law  to 
execute  or  do  his  official  duty,  or  taxes,  charges,  asks,  de- 
mands or  receives  any  more  or  greater  fees  than  are  allowed 
by  law  for  such  official  duty,  shall  upon  conviction,  be  fined," 
etc. 

It  will  be  seen  from  an  examination  of  this  statute  that  the 
penalty  is  confined  to  asking,  demanding,  or  receiving  illegal 
fees  for  the  past  or  future  performance  of  official  duties.  To 
constitute  the  crime  here  denounced,  the  sum  demanded  or 
received  must  at  least  be  claimed  as  due  the  officer  for  services 
in  his  official  capacity. 

There  are  some  earlier  cases  which  impliedly  recognize  that 
an  indictment  wou.d  be  good  which  charges  a  wrongful  collec- 
tion by  an  officer,  by  color  of  his  office,  of  more  than  was  due, 
without  specifying  whether  the  sum  thus  obtained  was  claimed 
to  be  due  the  officer  individually,  or  in  his  official  capacity,  or 
to  any  one  else.  State  v.  Coggswell,  3  Blackf.  54;  State  v.  Stotts, 
5  Bljickf.  460;  Seany  v.  State,  6  Blackf.  403j  vide,  also,  Peojile 
V.  ^M^aley,  6  Cow.  661. 

These  cases,  however,  refer  to  "  extortion  "  as  defined  by  the 


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AMERICAN  CRIMINAL  REPORTS. 


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common  law,  Avhich  embraced  a  much  Avider  scope  tlian  our 
statutory  extortion.  Extortion,  at  common  law,  was  "any 
officer's  unlawful  taking,  by  color  of  his  office,  from  any  man 
any  money  or  thing  of  value  that  is  not  due  to  him,  or  is  more 
than  is  due,  or  before  it  is  due."  4  Bl.  Comm.  141;  1  Bish. 
Cr.  Law,  §  573. 

The  distinction  was  clearly  made  in  Massachusetts,  wliere  it 
is  held  that  "to  subject  an  officer  to  the  penalty  provided  by 
the  statute,  it  must  be  proved  that  the  sum  alleged  to  have 
been  extorted  was  demanded  as  a  fee  for  some  official  duty." 
Runnells  v.  Fletcher,  15  Mass.  525. 

According  to  some  authorities,  in  order  to  constitute  the 
statutory  extortion,  there  must  have  been  some  official  service 
rendered,  for  which  more  pay  is  demanded  or  received  than  is 
allowed  by  law.  Shattuck  v.  Woods,  18  Mass.  171;  Hays  v. 
Stewart,  8  Tex.  358. 

"We  are  not  required,  however,  to,  and  do  not,  go  so  far.  It 
is  sufficient,  for  the  purposes  of  this  case,  for  us  to  say  that 
under  the  statute  the  fee  must  at  least  be  claimed  to  have  been 
due  as  a  fee  for  some  official  service. 

In  the  later  Indiana  cases  the  safer  course  n^eems  to  have 
been  followed,  and  it  is  clearly  set  forth  in  the  indictment  tliat 
the  sums  were  claimed  for  official  services.  State  v.  Jfoore,  1 
Ind.  548;  State  v.  B%irton,  3  Ind.  93. 

In  form  No.  907,  Whart.  Free.  Ind.,  the  necessity  of  such  an 
allegation  is  recognized. 

The  form  prescribed  in  Gillett's  Criminal  Law  (section  434), 
which  seems  to  have  been  followed  by  the  prosecuting  attor- 
ney in  all  other  respects,  contains  the  allegation  that  the 
money  Avas  received  or  fees  due  to  him,  "  the  said  A.  E,,  as  such 
clerk  as  aforesaid,  in  a  suit,"  etc. 

The  indictment  under  consideration  wholly  fails  to  show 
that  the  ajjpellee  received  the  money  as  fees  for  the  perform- 
ance of  any  official  duty,  or  in  his  official  capacitv.  So  far  as 
the  allegations  of  the  indictment  advise  us,  it  may  have  been 
claimed  by  him  for  services  as  witness  or  juror  in  the  case. 
With  reference  to  that  portion  of  the  indictment  Avhich  charges 
that  the  money  was  received  as  due  to  the  mayor  or  to  the 
state,  it  is  only  necessary  to  say  that  it  is  wholly  without  the 
statute. 


KIRBY  V.  STATE. 


297 


Our  conclusion,  therefore,  is  that  the  court  did  not  err  in 
sustaining  the  motion  to  quash.    Judgment  affirmed. 

Note.— TF/ia^  conatitutea. — It  is  extortion  under  the  statute  for  a  justice 
of  the  peace  to  demand  or  ask  for  his  fees  from  the  prosecutor  for  the  issu- 
ing of  his  warrant  on  a  criminal  complaint,  the  justice  knowing  that  such 
demand  is  illegal.  Lane  v.  State,  47  N.  J.  362;  5  Am,  Cr.  Rep.  31.5.  One 
holding  a  municipal  ofHce,  taking  greater  fees  than  are  prescribed  by  the 
ordinance,  is  guilty  of  extortion  under  a  statute  punishing  any  person  who 
knowingly  demands  and  receives  of  another  for  performing  any  service  or 
duty  any  greater  fee  than  is  legally  provided  for.  State  v,  Critchett,  1  Lea. 
(Tenn.)  271;  3  Am.  Grim.  Rep.  83. 


KlKBY   ETAL.  V.    StATE. 

(57  N.  J.  L.  — ;  81  Atl.  Rep.  213.) 

Extoetion:    By  persons  not  officers. 

The  incumbent  of  an  office  which  an  unconstitutional  statute  puqrorted  to 
create  can  not  be  guilty  of  extortion,  as  he  is  neither  adejure  nor  de 
facto  officer. 

Argued  June  terra,  1894,  before  Dixon,  Abbett  andKEED,  J  J. 

John  S.  Mitchell,  for  the  motion. 
Wm.  A.  Zogue,  opposed. 

Reed,  J.  This  indictment  is  for  extortion.  It  sets  out  that 
Kirby,  Richman  and  Westcott  constituted  the  board  of  license 
commissioners  of  Cumberland  county,  and,  as  such,  were  offi- 
cers of  this  state,  duly  empowered  to  grant  licenses  to  sell 
liquor,  and  being  such  officers,  with  such  power,  did  by  color 
of  their  said  office,  extortionately  demand  and  receive  from 
cue  Taylor  a  certain  sum  of  money  as  a  fee  or  reward  for  do- 
ing their  office. 

Extortion,  technically,  is  an  official  misdemeanor.  While, 
in  its  larger  sense,  it  signifies  any  oppression  under  color  of 
right,  in  its  strict  sense  it  signifies  the  taking  of  money  by  an 
officer,  by  color  of  his  office,  where  none,  or  a  part  only,  is  due. 
1  Hawk.  P.  C,  p.  418;  2  Bish.  0.  R.  Law,  §  392;  Revision,  tit. 


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298 


AMERICAN  CRIMINAL  REPORTS. 


"  Crimes,"  p.  230,  §  23.    The  offense  consists  in  the  oppressive 
misuse  of  the  exceptional  power  with  which  the  law   invests 
the  incumbent  of  an  office.     It  is  thus  apparent  that  the  crime 
of  extortion   is  comraittable  only  by  an  officer.     The  officer 
need  not  possess  a  legal  title  to  the  office  whose  functions  he 
executes.     A  person  who  serves  as  an  officer,  and  claims  to  be 
one,  is  estopped  to  deny  his  official  appointment.     2  Bish.  Cr. 
Law,  §  392.     So  it  appears  that  a  de  facto  as  well  as  a  dejure 
officer  is  punishable  for  extortion,  as  he  is  for  any  other  mal- 
feasance in  office.     But  an  official  character,  either  de  facto  or 
dejure,  is  essential.     The  indictment  is  drawn  in  the  usual 
form,  and  charges  that  the  defendants   were  officers,  and,  by 
color  of  their  office,  extorted.     This  is  a  material  averment, 
proof  of  which  is  absolutel}'^  required  to  support  a  conviction. 
The  fatal  defect  in  this  indictment  is  not  in  its  form,  but  is  to 
be  found  in  tlie  circumstance  that  it  must  now  be  concluded, 
as  a  matter  of  law,  that  these  defendants  were  never  the  offi- 
cers they  are  charged  to  have  been,  and  therefore  could  not, 
as  sucli,  have  extorted.    This  inexorable  legal  conclusion  is  the 
result  of  the  unconstitutionality  of  the  statute  which  created 
the  offices  of  license  commissioners  in  certain  counties,  which 
offices  the  defendants  are  charged  with  using  for  extortionate 
purposes.     Since  the  finding  of  this  indictment  this  court  has, 
in  the  case  of  State  v.  Bradshaw,  27  Atl.  939,  decided  that  the 
act  was  oi)posed  to  the  constitutional  prohibition   of  special 
legislation  regulating  the  internal  affairs  of  counties.     In  the 
subsequent  case  of  State  v.  City  of  Camden,  56  N.  J.  Law,  214, 
2S  Atl.  82,  it  was  held  that  a  license  certificate  issued  by  com- 
missioners appointed  under  this  act  was  a  nullit}'.    The  ground 
of  decision  was  that  the  statute  creating  the  offices,  being  un- 
constitutional,  was  to  be  regarded  as  if  it  had  never  been 
passed ;  that  there  never  were  such  offices  in  existence ;  and 
that  without  an  office  there  could  be  no  officer,  either  in  law  or 
in  fact.    The  decision  in  that  case  refused  to  accord  any  effi- 
cacy to  their  pretended  official  acts,  because  they  had  no  offi- 
cial existence.     It  appaars,  therefore,  from  this  statute,  and 
its  construction  by  this  court,  that  the  foundation  upon  which 
this  indictment  rests,  namely,  that  these  defendants  were  offi- 
cers, does  not  exist.    This  conclusion  does  not  mean  that  these 
defendants  are  entirely  dispunishable  for  the  act  of  taking,  by 
color  of  their  assumed  official  character,  money  to  which  they 


TOWNSEND  V.  STATE. 


200 


would  not  have  been  entitled,  had  the  statute  mentioned  been 
valid.  It  means  that  the}'^  can  not  be  punished  under  the  pres- 
ent form  of  indictment.    The  motion  to  quash  must  prevail. 


TowNSEND  V.  State. 

(92  Ga.  732.) 

Forqery:  What  constitutes. 

Although  a  check  upon  a  bank  is  in  many  respects  a  bill  of  exchange,  yet, 
as  tlie  Penal  Code  distinguishes  between  them,  in  that,  wliile  rendering 
the  forgery  of  either  an  offense,  it  does  not  provide  for  the  case  of  draw- 
ing a  check  in  a  fictitious  name,  it  can  not  be  held  that  a  check  upon  a 
liank  is  a  bill  of  exchange,  within  the  true  meaning  and  intent  of  sec- 
tion 4453  of  the  Code.  The  instrument  involved  in  the  present  case  be- 
ing a  check  upon  a  bank,  there  can  be  no  conviction  under  that  count 
in  tlie  indictment  which  describes  it  as  a  bill  of  exchange,  and  charges 
the  making  of  it  in  a  fictitious  name. 

Error  from  Superior  Court,  Floyd  County;  W.  M.  Henry, 
Judffe. 

Fintche  i&  Fouche,  for  plaintiff  in  error. 
11'.  /.  Nunnally,  Sol.  Gen.,  for  the  State. 

Simmons,  J.  The  controlling  question  in  this  case  is  whether 
a  clieck  upon  a  bank  is  a  bill  of  exchange,  within  the  meaning 
of  section  4453  of  the  Code,  which  declares  that  "  any  person 
who  shall  draw  or  make  a  bill  of  exchange,  due  bill  or  promis- 
sory note,  or  indorse  or  accept  the  same  in  a  fictitious  name, 
shall  be  guilty  of  forgery,  and,  on  conviction,  be  punished  by 
imprisonment  and  labor  in  the  penitentiary  for  any  time  not 
less  tlian  two  years  nor  longer  than  seven  years."  In  the  sec- 
ond count  of  the  indictment — which  is  the  one  under  which 
the  plaintiff  in  error  was  convicted,  the  first  count  having  been 
excluded  by  the  court  from  the  consideration  of  the  jury — it 
is  charged  that  the  plaintiff  in  error  and  one  Crankfield  "  did 
make  a  certain  bill  of  exchange  in  a  fictitious  name,  in  words 
and  figures  as  follows:    'Eome,  Ga.,  April  12th,  1893.    No. 

.    The  Merchants'  National  Bank  of  Eome  pay  to  Henry 

Crankfield  or  bearer  $140.93  one  hundred  &  forty  and  93-100 


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AMERICAN  CRIMINAL  REPORTS 


dollars.  Cave  Spring,  Ga.  Albert  M.  Tumlin' — the  said  Al. 
bert  M.  Tumlin  not  being  their  real  and  true  name,  but  a  ficti- 
tiou  3  name,  and  used  for  the  purpose  of  wronging  and  defraud- 
ing one  Albert  M.  Tumlin  and  the  Merchants'  National  Bank 
of  Rome  of  the  sum  of  one  hundred  and  forty  and  93-100  dol- 
lars." The  paper  put  in  evidence  was  executed  by  filling  out 
and  signing,  as  -iet  out  in  the  indictment,  a  blank  check  of  the 
Merchants'  ^nal  Bank  of  Rome.     It  was  contended  that 

this  paper  ^\,  'n  y  a  check,  and  not  a  bill  of  exchange,  and 
that  the  conviction  was,  therefore,  illegal. 

Undoubt:  il;-,  a  ch<^ck  upon  a  bank  is,  in  some  respects,  a 
l)ill  of  exchange;  >  nd  l:  o.ve  are  instances  where,  in  the  con- 
struction of  penal  statutes,  a  c'leck  has  been  held  to  fall  within 
that  designation.  Whart.  Cr.  PL,  §  137.  On  the  other  hand, 
it  has  been  said  that  "  a  check  is  not,  either  in  common  par- 
lance, or  in  the  technical  language  of  the  books,  called  a  '  bill 
of  exchange,'  *  *  *  though  it  may,  in  some  respects, 
have  the  same  legal  operation."  Chief  Justice  Kent,  in  People 
V.  Howell,  4  Johns.  301.  And  see  Bigelow,  Bills  &  X.  (Ed. 
1880),  115,  116;  3  Am.  «fe  Eng.  Ency.  Law,  Art.  "Cheeks,"  ]). 
211;  Nisbet,  J.,  in  Daniels  v.  Kyle,  1  Ga.  306.  In  arriving  at 
the  meaning  of  the  terra  "  bill  of  exchange,"  as  used  in  tho 
section  of  the  Code  under  which  this  conviction  was  had  (s(  c- 
tion  4453,  supra),  other  sections  which  are  in  pari  materia  are 
to  be  considered  in  connection  with  that  section;  and,  thus 
construing  them,  it  will  be  seen  that  a  distinction  is  made  be- 
tween bills  of  exchange  and  bank  checks.  The  forgery  of 
either  is  made  an  offense;  the  false  and  fraudulent  making, 
etc.,  of  "any  check  or  draft  upon  any  bank  of  this  state,"  be- 
ing dealt  with  in  section  4445,  and  the  false  and  fraudulent 
making,  etc.,  of  "  any  note,  bill,  draft  or  check  of  or  on  any 
person,  body  corporate,  company,  or  mercantile  house  or  firm, 
or  purporting  so  to  be,"  being  dealt  with  in  another  section, 
(section  4450);  but  the  case  of  drawing  or  making  a  check  in  a 
fictitious  name  is  not  provided  for,  unless  the  term  "  bill  of 
exchange,"  as  used  in  section  4453,  should  be  construed  to  in- 
clude checks.  In  sections  4446-4449,  the  term  "  bills  "  and  the 
term  "  checks  "  are  both  used,  the  one  being  followed  in  each 
instance  by  the  other.  Section  4453,  as  we  have  seen,  refers 
only  to  "a  bill  of  exchange,  due  bill  or  promissory  note." 
Whether  the  definition  of  a  bill  of  exchange,  as  given  in  the 


TOWNSEND  V.  STATE. 


301 


Civil  Cotle  (section  2773),  should  be  construed  to  include  a 
check  upon  a  bank  or  not,  we  can  not,  in  view  of  the  distinc- 
tion niiule  by  the  Penal  Code,  hold  that,  within  the  meaning 
of  section  4453,  a  check  upon  a  bank  is  a  bill  of  exchange. 
The  case  is  similar  to  that  mentioned  in  Bishop  on  Statutory 
Crimes  (2d  Ed.,  §  320),  where  one  section  provided  a  particular 
j)enalty  for  passing  counterfeit  bank  bills,  and  another  a  differ- 
ent Olio  for  passing  counterfeit  promissory  notes;  and  it  was 
held  that  though  the  words  "  promissory  notes "  would,  on 
(••eneral  principles,  include  bank  bills,  they  did  not,  within  the 
meaning  of  the  particular  statute.     See  State  v.  Ward,  6  N.  H. 

The  paper  in  question  here  being  an  ordinary  bank  check, 
it  follows  that  a  conviction  under  section  4453  was  improper, 
and  the  court  below  erred  in  overruling  the  motion  for  a  new 
trial.    Judgment  reversed. 

Note.— U^eringr.— The  Supreme  Court  of  Iowa  (58  N.  W.  Rep.  911),  in 
State  V.  Shei'wjod,  in  considering  when  the  ofTense  of  uttering  and  publish- 
ing a  forged  instrument  is  consummated,  liold  that  wliile  ordinarily  the 
offense  is  completed  by  an  actual  sale  and  delivery  of  the  paper,  yet  this  is 
not  always  necessary  to  constitute  the  off  tjnse  of  uttering  forged  paper. 
Mathews  v.  State,  33  Tex.  103;  People  v.  Brigham,  2  Mich.  550;  People  v. 
Caton,  25  Mich.  388;  State  v.  Horner,  48  Mo.  530.  The  oflfense  of  uttering 
and  publishing  is  proved  by  evidence  of  offering  to  pass  the  instrument  to 
another  peraon,  declaring  or  asserting,  directly  or  indirectly,  by  words  or 
actions,  that  it  is  good.     3  Greenl.  Ev.,  §  110. 

The  note  in  question,  on  its  face,  purported  to  have  been  executed  on  Sun- 
day, and  hence  it  is  said  it  was  void,  so  that,  even  if  the  signature  had 
been  genuine,  it  could  not  have  been  of  legal  efficacy,  or  the  fomidation  of 
a  legal  liability.  The  statute  defining  forgery  provides  :  "  If  any  pei-son 
with  intent  to  defraud,  falsely  make,  alter,  forge  or  counterfeit  *  *  » 
any  promissory  note,  *  *  *  being  or  purporting  to  be  the  act  of  another, 
by  which  any  pecuniary  demand  or  obligation,  or  any  right  or  interest  in 
or  to  any  property,  whatever,  is  or  purports  to  be  created,"  etc.  Code, 
g  3917.  This  court  has  defined  forgery  to  be  the  false  making  or  materially 
altering,  with  intent  to  defraud,  of  any  writing  which,  if  genuine,  might 
apparently  be  of  legal  efficacy,  or  the  foundation  of  a  legal  liability.  State 
V.  Pierce,  8  Iowa  331;  State  v.  Thompson,  19  Iowa  299;  State  v.  Johnson, 
26  Iowa  413.  True,  it  has  bsen  broadly  stated  that  there  can  be  no  forgery 
if  the  paper  is  invalid  on  its  face,  for  it  then  can  have  no  legal  tendency  to 
effect  a  fraul.  State  v,  Johnnon,  83  Iowa  418.  It  is  shown  without  con- 
flict that  the  purported  maker  of  this  note  was  not  an  observer  of  the 
seventli  day  of  the  week  as  the  Sabbath.  We  have,  then,  the  question  as 
to  whether  a  note  purporting  to  be  dated  on  Sunday  purports  to  create  a 
liability  in  such  a  sense  aa  that  the  false  making  or  signing  of  the  same 


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302 


AMERICAN  CRIMINAL  REPORTS. 


may  be  a  forgery.    A  note  made  on  Sunday,  but  in  fact  delivered  on  a 
week  day,  is  not  void.    Bi'll  v,  Mahin,  69  Iowa  408. 

It  is  true  that  a  note  in  fact  made  and  delivered  on  Sunday  is  void,  and 
can  not  be  used  in  evidence;  still,  in  a  civil  action,  by  making  proper  aver- 
ments touching  a  mistake  in  the  date,  or  that  it  was  in  fact  delivered  on  a 
week  day,  such  note  would  be  admissible  iii  evicieiiot,  pnd  on  proof  that  it 
was  made  or  delivered  on  a  week  day  it  would  be  the  basis  of  a  legal  liabil- 
ity against  a  genuine  maker.  The  intent  to  defraud  is  the  gist  of  the  otfense 
of  forgery.  The  fact  that  the  false  instrument  is  such  that  it  is  calculated 
to  deceive  is  a  material  question  on  an  indictment  for  forgery.  It  can  not 
be  doubted  that  a  nota,  while  apparently  void  on  its  face,  might,  as  a  mat- 
ter of  fact,  be  a  valid  and  binding  obligation,  if  genuine,  if  it  appeared  that 
in  fact  it  was  made  and  delivered  on  a  week  day.  Suppose  this  was  a  gen- 
uine instrument,  and  the  maker  was  sued  thereon,  and  the  petition,  by 
proper  averment,  showed  that  the  note  was  made  on  a  week  day,  and 
prayed  for  proper  relief;  there  could  be  no  doubt,  if  such  allegation  was  sus- 
tained by  proper  proof,  that  the  validity  of  the  instrument  would  be  estab- 
lished, and  a  recovery  had  thereon.  It  is  not,  then,  necessarily  an  instru- 
ment which  is  void.  That  fact  may  depend  upon  averments  and  imjof. 
That  it  is  an  instrument,  even  though  bearing  date  on  Sunday,  and  that  it  is 
calculated  to  deceive,  is  apparent.  Does  it  "  purport,"  within  the  meaning 
of  the  statute,  to  create  a  liability?  It  will  be  observed  that  under  the 
wording  of  our  statute  the  instrument  need  not  in  fact  create  any  liability. 
The  language  used  is:  "  By  which  any  pecuniary  demand  or  obligation,  or 
any  right  or  interest  in  or  to  any  property  whatever,  is  or  pur|K)rts  to  be 
created."  Now  "purport"  means  the  design  or  tendency — meaning  "im- 
port." Clearly  the  d33ign  of  this  instrument  on  pari  >f  the  defendant  was  to 
create  a  legal  liability  against  the  one  whose  name  he  falsely  signed  to  it. 
To  be  within  the  literal  reading  of  the  statute  the  false  instrument  may  not 
in  fact  be  such  that,  if  true,  it  would  have  created  any  liability  whatever;  it 
is  sufficient  if  it  be  an  instrument  the  design  or  meaning  of  which  is  to 
create  such  a  liability,  though  in  fact  it  may  not  do  so.  We  think  that  tlie 
false  making  of  an  instrument  of  this  character,  even  though  it  bear  dat? 
of  Sunday,  may  be  a  forgery  under  our  statute,  when  it  is  made  to  appear 
in  the  indictment  and  from  the  evidence  that  it  was  in  fact  made  on  a  week- 
day, and  when  the  testimony  shows  that  it  was  meant  and  intended  thereby 
to  deceive  and  defraud.  To  hold  otherwise  would  be  not  only  in  violation 
of  the  spirit  and  wording  of  the  statute,  but  would  render  the  business  of 
the  forger  profitable  and  successful.  All  he  would  have  to  do  to  escape  lia- 
bility would  be  to  date  the  instrument  forged  on  Sunday. 

What  constitutes. — "An  order  is  subject  of  forgery,  as  an  order  for 
payment  of  money,  though  no  consideration  be  expressed;  and  a  writing 
not  addressed  to  any  particular  person  may  be  an  order  for  the  payment 
of  money; "  and,  further,  that  "  an  order  for  the  delivery  of  goods  is 
subject  of  forgery,  although  not  addressed  to  any  one,  or  a  request  to  deliver 
goods  to  bearer."  Desty,  Cr.  Law,  pp.  606,  607,  §  150,  and  notes  1-3.  for 
numerous  cited  authorities;  State  v.  Batiman,  52  Iowa  68.  See.  also, 
Hendricks  v.  State,  26  Tex.  App.  179,  9  S.  W.  555,  557;  Dovaline  v.  State, 
14  Tex.  App.  824.  If  the  instrument  affects  property,  it  is  the  subject 
of  forgery.  Alexander  v.  State,  28  Tex.  App.  186;  Oonnine  v,  Staf  \  104 
Ind.  444;  5  Am.  Cr.  Rep.  238. 


EX  PARTE  FOSS. 


803 


A  false  instrument  or  writing  made  out  with  criminal  intent  to  defraud, 
which  is  good  on  its  face,  may  be  legiilly  cap;vble  of  effecting  the  fraud, 
though  inquiry  into  extrinsic  facts,  or  matters  not  appearing  on  its 
face,  would  sliow  it  to  be  invalid,  even  if  it  were  genuine;  therefore  the 
forging  of  such  an  instrument  or  writing  is  an  offense  under  tlie  statute. 
State  V.  Hilton,  85  Kan.  338;  8  Am.  Cr.  Rep.  261. 


Ex  Pakte  Foss. 
(103  Cal.  347.) 

Habeas  Corpus;    International  late— Extradition  treaty— Construction. 

1.  The  existf-nce  of  an  extradition  treaty  between  the  United  States  and 

the  Hfiwaiian  Islands  does  not  prohibit  the  surrender  bj'  either  of  a 
person  (iharged  with  a  crime  not  enumerated  in  the  treaty. 

2.  The  sotting  aside  on  motion  of  an  indictment  against  an  extradited 

prisoner  does  not  operate  as  an  acquittal  of  the  offense  charged,  nor  bar 
his  further  prosecution  for  the  same  offense  by  indictment  or  mforma- 
tion.    McFarland,  J.,  dissenting. 

In  banc. 

Proceeding  by  one  Foss  on  haheas  corpus  for  discharge  from 
imprisonment.     Petitioner  remanded. 

C.  E.  McLaughlin,  for  petitioner. 
//.  8.  Webb,  for  respondent. 

De  Haven,  J.  The  petitioner,  Foss,  was  indicted  by  the 
grand  jury  of  the  county  of  Plumas  for  the  crime  of  embezzle- 
ment. At  the  date  of  the  finding  of  this  indictment  the 
petitioner  was  in  Honolulu,  and  there  remained  until  February, 
1894,  when,  upon  the  request  of  the  American  minister,  and 
upon  "  a  requisition  to  that  effect "  from  the  governor  of  the 
state  of  California,  he  was  surrendered  by  the  provisional  gov- 
ernment of  the  Hawaiian  Islands  to  the  agent  appointed  by  the 
governor  to  receive  and  convey  him  back  to  this  state,  there 
to  be  tried  for  the  offense  with  which  he  was  charged  in  the 
indictment  referred  to.  The  treaty  between  the  United  States 
and  the  government  of  the  Hawaiian  Islands  in  relation  to  the 
extradition  of  fugitives  from  the  justice  of  either  of  such 
countries  does  not  provide  for  the  extradition  of  a  person 


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304 


AMERICAN  CRIMINAL  REPORTS. 


charged  with  tlie  crime  of  embezzlement,  and  the  wairant 
issued  1)}'  tlie  Hawaiian  government  for  the  arrest  of  thi;  j  e- 
titioner,  and  for  his  delivery  to  the  agent  ajjpointed  by  the 
governor  of  this  state  to  receive  him  into  custody,  does  not 
refer  to  the  treaty,  but  the  ])roceedings  preliminary  to  the 
issuance  of  such  warrant  were  conducted  in  accordance  with 
the  rules  ])rescribed  by  the  treaty  to  effect  the  extradition  of 
a  person  charged  with  either  of  the  offenses  for  whicli  extra- 
dition is  there  provided.  The  ])etitioner,  upon  his  return  to 
this  state,  was  brought  before  the  superior  court  of  Plumas 
county,  in  which  the  said  indictment  against  hira  was  j)eiuling, 
and  ho  then  moved  to  set  the  indictment  aside.  The  motion 
was  granted,  and  he  was  discharged  from  custody,  and  within 
two  hours  thereafter  a  complaint  was  filed  with  a  justice  of 
the  peace,  charging  him  with  the  same  embezzlement  named 
in  the  indictment  previously  set  aside,  and  he  was  again  ar- 
rested, and,  after  examination,  held  to  answer  the  charge  before 
the  superior  court  of  Plumas  county;  and  he  is  n(jw  in  tlie 
custody  of  the  sheriff  of  that  county  awaiting  his  trial. 

The  petitioner  claims  that  his  imprisonment  under  the  cir- 
cumstances here  stated  is  illegal,  and  he  seeks  to  be  discharged 
therefrom  under  the  writ  of  haheaa  corpus  upon  which  he  has 
been  brought  before  this  court.  In  support  of  this  general 
contention  he  insists  that  his  arrest  in  the  foreign  country,  and 
enforced  return  to  this  state,  and  detention  here  for  the  pur- 
pose of  Ijoing  tried  for  the  crime  charged  in  the  indictment, 
was  and  is  in  violation  of  his  rights  under  the  trcat\'  between 
the  United  States  and  the  government  of  the  Hawaiian 
Islands.  That  treaty,  in  article  14,  provides:  "The  con- 
tracting parties  mutually  agree  to  surrender,  upon  oiHcia! 
requisition,  to  the  authorities  of  each,  all  persons  who,  being 
charged  with  the  crimes  of  murder,  piracy,  arson,  robbery, 
forgery,  or  the  utterance  of  forged  paper,  committed  within  the 
jurisdiction  of  either,  shall  be  found  within  the  territories  of 
the  other,  provided  that  this  shall  only  be  done  upon  such 
evidence  of  criminality  as,  according  to  the  laws  of  the  place 
where  the  person  so  charged  shall  be  found,  would  justify  his 
apprehension  and  commitment  for  trial,  if  the  crime  had  there 
been  committed."  9  Stat.  p.  981.  It  is  argued  that  the 
treaty,  in  thus  enumerating  the  offenses  for  which  fugitives 
who  have  sought  an  asylum  in  either  country  shall  be  delivered 


EX  PARTE  FOSS. 


305 


into  tlio  custody  of  the  other  upon  demand  of  its  government, 
in  eirt'tt  j)r<)hil)its  the  surrender  by  either  nation  of  a  person 
charged  with  any  other  than  one  of  the  mentioned  crimes;-that 
the  treaty  is  to  be  construed  as  containing  an  implied  stipula- 
tion upon  tiie  part  of  the  United  States  that  a  person  commit- 
ting any  other  crime  against  its  laws  than  one  of  those  named 
in  the  treaty,  and  who  thereafter  escapes  to  Hawaii,  shall  not 
1)0  subject  to  arrest  and  return  to  the  United  States,  there  to  be 
tried  for  such  non-enumerated  crime,  even  though  the  govern- 
ment of  Hawaii  should  voluntarily  surrender  him  for  that 
purpose  as  a  matter  of  comity.  In  our  opinion,  the  language 
of  this  treaty  will  not  bear  such  a  construction.  It  is,  of 
course,  true,  that  when  a  treaty  provides  for  the  extradition 
of  fugitives  charged  with  particular  criiries,  the  reciprocal  duty 
of  delivering  up  to  the  justice  of  the  other  persons  charged 
with  crime  is  confined  to  the  particular  cases  for  which  the 
treaty  lias  provided.  Com.  v.  Ilawes,  13  Bush  708;  U.  S.  v. 
Rausch'r,  119  U.  S.  411,  412,  7  Sup.  Ct.  234.  Thus  in  Com.  v. 
Jlawcs,  just  cited,  it  is  said :  "  The  right  of  one  government  to 
demand  and  receive  from  another  the  custody  of  an  offender 
who  has  sought  asylum  upon  its  soil  depends  upon  the  exist- 
ence of  treaty  stipulations  between  them,  and  in  all  cases  is 
derived  from  and  is  measured  and  restricted  by  the  provisions, 
express  and  implied,  of  the  treaty."  But,  while  this  is  so,  the 
existence  of  a  treaty  which  provides  for  extradition  for  certain 
crimes  does  not  deprive  either  nation  of  the  power  and  right 
to  exercise  its  own  discretion  in  cases  not  coming  within  the 
terms  of  the  treaty.  It  is  only  to  the  extent  that  the  treaty 
imposes  an  obligation  to  surrender  persons  charged  with  par- 
ticular offenses  that  there  is  any  restriction  placed  upon  the 
sovereign  right  of  the  nation  in  which  the  fugitive  is  found  to 
either  permit  or  refuse  to  permit  his  arrest  and  return  to  the 
country  from  which  he  has  fled.  In  other  words,  in  relation 
to  persons  charged  with  offenses  not  named  in  the  treaty,  each 
government,  as  an  incident  of  its  sovereignty,  may  either  grant 
or  deny  to  the  fugitive  an  asylum  within  its  jurisdiction. 
This  conclusion  is  so  obviously  correct  that  no  extended  argu- 
ment is  necessary  to  sustain  it,  and  the  principle  is  thus  stated 
in  section  269  of  volume  2  of  Wharton's  International  Law 
Digest :  "  The  rule,  expressio  uniua  est  exclusio  alterius,  applies 
80 


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300 


AMERICAN  CRIMINAL  REPORTS. 


to  extnulition  treaties,  and  under  such  treaties  process  can  bo 
sustained  only  for  enunierateil  offenses.  This,  however,  would 
not  j^rechulo,  in  extraordinar}'  cases,  an  appeal,  not  oji  the 
basis  of  the  treaty,  but  on  the  ground  of  comity,  for  surnMulcr 
of  a  fugitive  charged  with  a  non-enumerated  olFeiiso,  wlu'ii 
such  offense  is  one  which  would  justify  such  an  extraoi'diiuirv 
measure.  *  *  *  Thus,  in  1790,  the  secretary  of  state  (Mr. 
Pickering]  *  expresses  his  concurrence  with  Mr.  List(»n  fUritisIi 
minister  at  Washington]  in  the  opinion  that,  while  the  recip- 
rocal delivery  of  murderers  and  forgers  is  expressly  stiinilatod 
in  the  twenty-seventh  article  of  our  treaty  with  Great  l»ritain, 
the  two  governments  are  left  at  liberty  to  deliver  otiior 
offenders,  as  propriety  and  mutual  advantage  shall  direct. 
*  *  *  The  attorney-general  has  just  called,  and  thinks  tlic 
opinion  expressed  to  be  correct.'  Mr.  Pickering  to  the  jircs- 
ident,  June  3,  1796.  MSS.  Dom.  Let.  In  a  letter  of  same 
date  to  the  governor  of  Vermont,  Mr.  Pickering  says :  '  The 
reciprocal  delivery  of  murderers  and  forgers  is  positively  stip- 
ulated by  the  twenty-seventh  article  of  the  treats'.  The 
conduct  of  the  two  governments  with  respect  to  other  offend- 
ers is  left,  as  before  the  treaty,  to  their  mutual  discretion;  but 
this  discretion  will  doubtless  advise  the  delivery  of  culprits  for 
offenses  which  affect  the  great  interests  of  society.' " 

The  crime  with  which  the  petitioner  is  charged,  not  being 
an  extraditable  offense  under  the  treaty  between  the  United 
States  and  the  government  of  the  Hawaiian  Islands,  it  must  bo 
presumed  that  the  surrender  of  the  petitioner  was  made  by 
the  latter  in  the  exercise  of  its  own  sovereign  discretion,  and 
as  an  act  of  comity.  This  violated  no  right  secured  to  the  peti- 
tioner by  the  treaty  referred  to,  as  that  treaty  does  not  in 
terms  or  by  necessary  implication  deny  to  that  government 
the  right  to  surrender,  or  deprive  the  United  States  of  the 
right  upon  such  surrender  to  receive  into  its  custody,  fugitives 
charged  with  offenses  not  enumerated  in  the  treaty.  The  cases 
of  U.  S.  V.  liauscher,  119  U.  S.  407,  7  Sup.  Ct.  234;  Covi.  v. 
Ilawes,  13  Bush.  697;  U.  S.  v.  Watts,  8  Sawy.  370, 14  Fed.  13((; 
Ex  parte  Hihhs,  26  Fed.  421,  cited  and  relied  upon  by  petitioner, 
do  not  sustain  his  contention  upon  this  point.  Tliose  case? 
simply  declare  that  when  a  defendant  has  been  surrendered  in 
pursuance  of  a  treaty  for  trial  upon  a  specific  charge  named 
therein,  he  can  not  be  placed  upon  trial  for  any  other  than  the 


'ii':    ■■  ifii 


EX  r.VUTE  FOSS, 


30: 


partionlar  olTonso  niiincd  in  tlio  extradition  procoodinn:.  This 
rule  is  well  settled,  but  it  lius  no  appiiciition  wiuitevcr  to  the 
rnse  presented  by  the  petitioner  here. 

It  is  idso  contended  in  ijehidf  of  pfititioner  that  ho  was  only 
surrendered  by  iho  government  of  the  Hawaiian  Islands  for 
trial  upon  the  indictment  referred  to  in  the  wai-rant  issued  by 
that  •Government,  commanding  Iiis  arrest  and  delivery  into  the 
custody  of  the  agent  authorized  to  convoy  him  back  to  this 
state,  and  that,  when  this  indictment  was  sot  aside,  he  had  fully 
nu't  its  accusation,  and  was  entitled  to  a  reasonable  time  within 
Avliic'h  to  return  to  the  foreign  asylum,  and  that  he  can  not  be 
lawfully  detained  hero  to  answer  the  complaint  ujion  which 
ho  is  now  held  for  trial  before  the  superior  court.  If  it 
should  be  conceded  that  a  fugitive  from  justice,  surrendered 
by  a  foreign  government  on  grounds  of  comity,  has  tlie  same 
right  to  his  discharge  upon  hdlnos  cofjti/fi,  when  imprisoned 
upon  a  different  charge  than  that  for  which  h(>  was  delivered 
up,  as  if  he  had  been  extradited  under  the  provisions  of  a  treaty, 
and  arrested  and  detained  for  trial  upon  another  offense  than 
that  named  in  the  extradition  proceedings,  in  violation  of  the 
implied  jirovisions  of  the  treaty,  still  we  do  not  think  the  peti- 
tioner here  would  bo  entitled  to  a  discharge  upon  the  facts 
appearing  in  this  record.  The  order  setting  aside  the  indict- 
ment did  not  operate  as  an  acquittal  of  the  petitioner  for  the 
offense  therein  charged,  and  is  not  a  bar  to  his  further  prose- 
cution for  the  same  offense  by  indictment  or  information;  and, 
as  he  is  now  held  by  virtue  of  an  onler  of  commitment  based 
upon  a  comjilaint  charging  him  with  the  identical  offense  namou 
in  the  indictment  set  aside,  and  to  answer  which  he  was  sur- 
rendered by  the  Hawaiian  government  for  trial  by  the  state, 
the  petitioner  should  be  remanded.     Petitioner  remanded. 

"We  concur :    Bkatty,  C.  J.;  Harrison,  J.;  Garoltte,  J. 

McFarland,  J.  I  dissent.  The  petitioner,  Foss,  Avas  in- 
dicted by  the  grand  jury  of  Plumas  county,  in  this  state,  for 
the  crime  of  embezzlement.  At  the  time  of  the  indictment 
he  was  in  the  Hawaiian  Islands.  A  requisition  was  made  upon 
the  government  of  the  islands  for  his  extradition  here  to  answer 
the  charge  Dreferrod  bv  said  indictment,  and  under  extradition 
proceedings  he  was  returned  to  said  Plumas  county.    He 


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308 


AMERICAN  CRIMINAL  REPORTa 


moved  to  set  aside  the  indictment,  and  his  motion  was  granted 
and  he  was  discharged  from  custody.  Within  two  hours  after- 
ward a  comi)laint  for  embezzlement  was  made  before  a  justice 
of  the  peace,  and  he  was  ari'ested  upon  a  warrant  issued  by 
said  justice.  He  now  applies  to  this  court  under  the  proceed- 
ing of  habeas  corjnis,  to  be  discharged.  There  is  a  treaty 
between  the  government  of  the  Hawaiian  Islands  and  the  gov- 
ernment of  the  United  States  for  the  return  from  one  to  the 
other  country  of  persons  charged  with  certain  enumerated 
crimes;  but  the  crime  of  embezzlement  is  not  one  of  the  crimes 
so  enumerated.  Said  treaty  is  to  be  found  in  7  Am.  &  Eng. 
Enc.  Law,  p.  (500. 

The  first  point  made  by  petitioner  is  that  he  can  not  be  re- 
turned to  this  country  and  tried  here  for  any  crime  not  enumer- 
ated in  the  ti'eaty.  There  are  certain  very  strong  authorities 
to  sustain  this  ])oint,  particularly  Co?n.  v.  Ilawes,  13  Bush.  OttT; 
U.  6\  V.  Wattn,  8  Sawy.  370,  U  Fed.  130;  Holmes''  Case,  U  Pet. 
503;  U.  S.  V.  liaiischer,  119  U.  S.  407,  7  Sup.  Ct.  234;  Spear, 
Extradition,  pp.  221,  205,  et  seq.  The  questions  raised  by  this 
point  need  not,  however,  be  here  passed  upon  definitely,  because 
we  think  that  the  petitioner  should  be  discharged  upon  the 
second  point  made  by  his  counsel,  to  wit,  that  the  indictment 
upon  which  the  extradition  was  secured  having  been  set  aside, 
and  the  petitioner  entirely  discharged,  he  can  not  afterward 
be  held  upon  a  complaint  before  a  justice  of  the  peace,  without 
having  been  given  reasonable  time  to  return  to  the  country 
from  whence  he  was  brought.  The  treaty  above  mentioned 
provides  that  a  person  charged  with  crime  shall  be  extradited 
only  "  upon  such  evidence  of  criminality  as,  according  to  the 
laws  of  the  place  where  the  person  so  charged  sliall  be  found, 
would  justify  his  apprehension  and  commitment  for  trial  if 
the  crime  had  been  committed  there."  It  further  provides  that 
the  person  demanded  shall  be  brought  before  a  court  of  the 
country  in  which  he  is,  "  to  the  end  that  the  evidence  of  crim- 
inality may  be  heard  and  considered; "  and  if,  upon  such  hear- 
ing, the  magistrate  is  satisfied  that  the  evidence  sustains  the 
charge,  he  may  issue  a  warrant  for  the  surrender  of  the  fugi- 
tive. Now,  in  the  case  at  bar  it  appears  that  the  judge  at  the 
Hawaiian  Islands  was  presented  with  a  certified  copy  of  the 
indictment  that  had  been  found  against  the  petitioner,  witii 
the  atiidavit  of  the  foreman  of  the  grand  jury,  and  that  he 


EX  PARTE  FOSS. 


309 


acted  entirely  upon  the  sufficiency  of  the  evidence  as  afforded 
bv  said  indictment.  And  the  indictment  upon  which  the 
authorities  of  the  Hawaiian  Islands  acted,  and  which  it  may 
reasonably  be  supposed  was  considered  as  sufficient  evidence 
for  action  there,  having  been  set  aside  and  held  invalid  by  the 
court  in  Plumas  count}',  and  the  prisoner  having  been  dis- 
charged under  said  indictment  upon  which  the  extradition 
papers  were  based,  he  could  not  be  held  upon  a  complaint 
before  a  magistrate  and  proceedings  which  were  entirely  un- 
known to  the  authorities  of  the  Hav^^aiian  Islands,  and  upon 
which  their  order  for  the  arrest  of  the  fugitive  was  not  in  any 
way  based.  As  was  said  in  Co?n.  v.  Ilawes,  ftupra,  "  By  pro- 
viding the  terms  and  conditions  upon  which  a  warrant  for  the 
arrest  of  the  alleged  fugitive  may  bo  issued,  and  confining  the 
duty  of  making  the  surrender  to  cases  in  which  the  evidence 
of  criminality  is  sufficient,  according  to  the  laws  of  the  place 
where  such  fugitive  is  found,  to  justify  his  commitment  for 
trial,  the  right  of  the  demanding  government  to  decide  finally 
as  to  the  propriety  of  the  demand  and  as  to  the  evidences 
of  guilt  is  as  plainly  excluded  as  if  that  right  had  been  denied 
by  express  language.  It  Avould  scarcely  be  regarded  an  a!)use 
of  the  rules  of  construction,  from  these  manifest  restrictions, 
unaided  by  extraneous  considerations,  to  deduce  the  conchision 
that  it  was  not  contemplated  by  the  contracting  parties  that 
an  extradited  prisoner  sliould,  under  any  circumstances,  be  com- 
pelled to  defend  himself  against  a  charge  other  than  one  upon 
which  he  is  surrendered,  much  less  against  one  for  which  his 
extradition  could  not  be  demanded."  And  I  think  the  right 
under  the  treaty  is  one  which  the  petitioner  himself  may  assert. 
The  petitioner,  in  my  opinion,  should  be  discharged  from 
custody. 


Ml 


Note.— TWrtZ  for  crime  not  evniiwrated  in  treaiy.— It  was  an  accepted 
opinion  with  judges  and  jurists  prior  to  the  decision  in  United  States  v. 
Rituscher,  119  U.  S.  407,  that  one  wlio  was  extradited  could  be  tried  only 
for  the  offense  specified  in  the  proceedings.  Church,  Habeas  Corpus,  Sec. 
462;  Speer  on  Extradition,  94-149;  United  States  v.  Watts,  14  Fed.  Rep.  130; 
State  V.  Vanderpool,  89  Ohio  St.  a73. 

Trying  a  fugitive  for  an  offense,  other  than  that  for  which  he  was  extra 
(lited,  was  pronounced  a  violation  of  the  right  of  asylum  offered  by  every 
nation,  and  in  one  case  it  was  declared  that  this  right  was  protected  by  the 
treaty  in  every  case  where  it  was  not  specifically  surrendered.     State  v. 
Va)iderpool,  supra.    In  United  States  v.  Lawrence,  13  Blatchf.  295,  Justice 


^i"l 


ivt        IM 


:-f 


VI 


>^i 


ii 


f 


310 


AMERICAN  CRIMINAL  REPORTS. 


Benedict  ruled  that  an  escape  to  a  foreisn  country  does  not  confer  immu- 
nity from  arrest  as  against  the  law  which  the  fugitive  has  violated.  The 
right  of  asylum  is  a  riglit  of  eveiy  government  to  exercise  exclusive  juris- 
diction over  people  witliin  its  borders.  If  it  were  the  pei-sonal  riglit  of  the 
fugitive  then  no  person  surrendered  by  a  country  witli  which  there  is  no 
extradition  treaty  could  be  tried  for  crime,  for  the  surrender  would  be  a 
violation  of  the  right,  and  a  fugitive  arrested  in  one  country  and  brought 
into  the  country  from  which  he  fled  would  be  entitled  to  discharge  on  that 
ground;  but  this  is  against  the  weight  of  authority.  Ex  parte  Scott,  9  B. 
&  C.  446;  Kerr  v.  Illinois,  119  U.  S.  436. 

Procuring  an  arrest  by  fraud  or  other  illegal  means  in  order  to  bring  a 
fugitive  within  jurisdiction  does  not  entitle  him  to  discharge.  State  ?'.  Wen- 
zel,  37  Ind.  428.  In  cases  where  the  fugitive  is  sought  to  lie  held  in  a  civil 
action  his  personal  riglics  are  violated  and  he  can  seek  the  aid  of  tlie  court 
to  enforce  his  rights  against  the  other  party;  but  when  the  charge  is  crim- 
inal he  has  no  such  rights.  The  offender  against  the  criminal  laws  of  the 
state  acquires  no  right  by  his  flight  or  absence  fi"om  the  jurisdiction  of  tlie 
courts  where  he  is  found,  and  the  courts  are  not  bound  to  regard  such  riglits 
when  he  is  again  within  the  jurisdiction.     Luscelles  v.  State,  90  Ga.  347. 

Distinction  between  extradition  and  rendition.— The  rule  as  settled  by 
the  Supreme  Court  of  the  United  States  in  U,  S.  v.  Rausclier,  mijtru,  and 
in  Lasccllea  v.  Georgia,  148  U.  S.  537,  settles  the  question  of  extradition,  and 
makes  clear  the  distinction  between  cases  of  extradition,  that  is,  the  sur- 
render of  a  fugitive  from  one  country  to  another,  and  the  rendition  of  a 
fugitive  between  different  states.  In  the  former  case  it  was  held  tluit  tlie 
fugitive  from  a  foreign  country,  under  a  treaty  specifying  crimes  for  wliidi 
extradition  may  be  had,  can  not  be  tried  for  any  other  offense  than  that 
named  in  the  proceedings  for  extradition.  In  the  latter  case  it  was  decided 
that  the  fugitive  surrendered  by  the  governor  of  one  of  the  United  States 
on  requisition  from  another  may  be  tried  for  any  offense  witli  which  he  may 
be  charged,  whether  named  in  tiie  requisition  or  not.  These  two  cases 
make  clear  the  distinction  between  foreign  and  intei"state  extradition. 


Highway  Robbery: 


State  v.  Buown. 

(113  N.  C.  645.) 

Siifflciencff  of  indictment  —  Joinder  of  counts  for 
higher  and  lower  offense. 


1.  The  joinder  in  an  indictment  for  an  offense,  of  a  count  for  a  lesser 

offense,  or  for  an  attempt  to  commit  the  same,  is  mere  surplusage. 

2.  An  indictment  for  iiigliway  robbery,  charging  the  taking  of  "  ten  dollars 

in  money,"  sufficiently  alleges  that  money  "  of  the  value  of  ten  dolhus"' 
was  taken,  and  is  not  objectionable  as  failing  to  designate  the  value  of 
the  money  taken. 
8.  An  indictment  is  not  bad  for  failure  to  state  that  defendant  stole  the 


STATE  V.  BROWN. 


311 


money;  the  allegation  that  he  "  feloniously  did  take  and  carry  away  " 
the  money,  being  a  sufficient  allegation  in  that  re^^ard. 
4.  A  charge  in  such  indictment  that  defendant  "  did  make  an  assault,"  and 
"  put  in  bodily  fear  and  danger  of  his  life,"  and  "then  and  there  feloni- 
ously and  violently  did  seize,  take  and  carry  away"  ten  dollars  from 
the  prosecutor,  and  that  the  taking  was  accomplished  "  with  force  and 
anus,"  sufficiently  alleges  tlie  use  of  force. 

Appeal  from  Superior  Court,  Edgecombe  County;  Hoke, 
Judge. 

Preston  Brown  was  convicted  of  highway  robbery  and  ap- 
peals.    Affirmed. 

The  Atto/'iiey-Gcneral,  for  the  State. 

Clauk,  J.  Upon  inspection  of  the  transcript,  it  appearing 
that  though  the  "  case  on  appeal "  recited  that  there  was  a 
verdict  of  guilty  and  judgment,  the  record  proper  failed  to 
show  that  there  had  been  a  trial  by  jury,  and  to  sot  out  the 
sentence  of  the  court  below,  this  court  ex  mero  motu  directed 
an  imtanter  certioravi  to  suppl}"^  the  defect,  which  iias  now 
been  done. 

The  indictment  sets  out  two  counts — one  for  highway  rob- 
bery; second,  for  an  attempt  to  commit  the  same.  The  verdict 
found  the  defendant  guilty  on  the  first  count.  It  is  therefore 
unnecessary  to  consider  the  exception  made  to  the  second 
count.  But  had  the  defendant  been  convicted  of  the  attempt 
to  commit  highway  robbery,  the  first  count,  if  good,  would 
have  supported  the  verdict,  since  the  Act  of  1891  (chapter  205, 
5J  2),  whicii  ])rovi(les :  "  Upon  the  trial  of  any  indictment  the 
prisoner  may  be  convicted  of  the  crime  charged  therein,  or  of 
a  lesser  degree  of  the  same  crime,  or  of  an  attem])t  to  commit 
the  crime  so  charged,  or  of  an  attem})t  to  commit  a  lesser  de- 
f,'ree  of  the  same  crime."  This  statute  is  a  copy  of  that  in  force 
in  England  and  in  New  York  and  other  states.  It  extends  to  all 
crimes  the  provision  which,  to  a  more  limited  extent,  was  al- 
ready in  force  in  this  state  by  virtue  of  chapter  34,  Acts  1885, 
and,  indeed,  at  common  law.  Whart.  Crim.  PL  &  Pr.  (9th  Ed.), 
J;!}  2-iG,  405.  The  joinder  of  a  count  for  a  lesser  offense,  or  an 
attempt,  is  now  mere  surplusage. 

The  objections  to  the  first  count,  raised  by  motion  to  quash, 
and  renewed  after  verdict  by  a  motion  in  arrest  of  judgment, 
were :  (1)  "  For  that  there  was  no  value  of  the  money  desig- 
nated in  the  bill."    In  an  indictment  for  this  offense  the  value 


ii'tilii.! 


n  \ 


312 


AMERICAN  CRIMINAL  REPORTS. 


or  description  of  the  article  taken,  or  attempted  to  be  taken 
is  not  material,  for  the  gist  of  the  offense  is  not  the  taking,  but 
a  taking  by  putting  in  fear  or  by  force.  State  v.  Burhe,  73  N. 
C.  83,  citing  Eex  v.  Bingley,  5  Car.  &  P.  602.  But  in  fact  the 
charge  of  "ten  dollars  in  money"  is  an  allegation  of  "the 
»'alue  of  ten  dollars,"  since  money  is  the  measure  of  values. 
McCarty  v.  State,  127  Ind.  223.  Indeed,  the  descri})tion  would 
be  sufficient,  under  our  statute,  even  in  an  indictment  for  lar- 
ceny, and  would  be  sustained  by  proof  of  the  theft  of  coin  or 
bank  or  treasury  notes.  State  v.  Freeman,  89  N.  C.  469;  the 
Code,  §  1190. 

(2)  "  That  the  word  '  steal,'  aor  any  equivalent  word,  is 
charged  in  the  bill." 

It  is  not  necessary  that  it  should  be.  The  indictment  is  a 
copy  of  the  form  given  in  Whart.  PI.  &  Pr.,  §  410.  Among  the 
many  definitions  given  of  robbery  probably  the  best  is  that  by 
Lord  Mansfield :  "  A  felonious  taking  of  property  from  the 
person  of  another  by  force  "  {Rex  v.  Donally,  2  East,  P.  C. 
715,  725);  or  Blackstone's  (4  Bl.  Comm.  242) :  "  The  felonious 
and  forcible  taking,  from  the  person  of  another,  of  goods  or 
money  to  any  value,  by  violence  or  putting  him  in  fear."  To 
make  it  highway  robbery  it  is  only  necessary  furtlicr  to  charge 
and  prove  that  it  was  committed  "  in  or  near  a  highway."  It 
is  true,  a  defendant  acquitted  of  this' offense  because  violence 
or  putting  in  fear  is  not  proved,  may  be  convicted  of  larceny 
{State  V.  Cody,  60  N.  C.  197;  State  v.  IlaJford,  104  N.  C.  874); 
but  the  word  "  steal "  is  not  an  indispensable  word,  like  "  felo- 
niously," either  in  this  or  an  indictment  for  larceny.  As  to 
either,  the  words  "  feloniously  did  take  and  carry  away  "  are  a 
sufficient  allegation  in  this  respect.  The  addition  of  the  word 
"  seize,"  i.  e.,  "  feloniously  did  seize,  take  and  carry  away,"  is 
a  peculiarly  appropriate  substitute  in  an  indictment  for  this 
oflfense  for  the  word  "  steal,"  which  is  tautology,  and  a  mere 
I'epetition  of  the  idea  embraced  in  the  words  "  feloniously  take 
and  carry  away." 

(3)    "  That  no  force  is  charged  therein." 

The  charge  that  the  defendant  "  did  make  an  assault,"  and 
"  put  in  bodily  fear  and  danger  of  his  life,"  and  "  then  and 
there  feloniously  and  violently  did  seize,  take  and  carry  away  " 
810  in  money  from  the  prosecutor,  is  a.  very  explicit  allegation 
of  force.    Indeed,  the  words  "  feloniously  and  violently  "  were 


STATE  V.  HERMANN. 


313 


of  themselves  sufficient.  State  v.  Cowan,  29  N.  C.  239,  250. 
But  this  indictment  goes  beyond  that,  and  beyond  the  other 
words  above  quoted,  and  even  adds,  out  of  abundant  caution, 
the  express  words  "  with  force  and  arms,"  which  have  been 
held  unnecessary  in  an  indictment  for  any  offense  for  three 
centuries  and  a  half.  /State  v.  Harris,  106  N.  C.  682, 6S7.  No 
error. 

Note.— ir/irtf  constitutex.—To  constitute  the  crime  of  robbsrj'  by  forcibly 
taking  money  from  the  person  of  its  owner,  it  is  sufficient  if  the  violence 
employed  against  the  person  of  the  owner  be  contemporaneous  with  the 
taking.  State  v.  Miller,  53  Kan.  324;  Hanson  v.  State,  43  Ohio  St.  376; 
5  Am.  Cr.  Rep.  675.  It  is  not  necessary  that  the  taking  of  the  property 
should  be  directly  from  one's  person,  to  constitute  the  offense  of  robbery;  it 
is  sufficient  if  it  is  taken  while  in  his  possession  or  immediate  presence. 
Crawford  v.  State,  90  Ga.  701;  2  P- -a.  Crimes,  106, 107;  Clements  v.  State, 
81  Ga.  600;  8  Am.  Cr.  Rep.  692. 

Owno.rshij)  of  property. — Possession  of  property  and  apparent  ownership 
are  sufficient  to  support  the  charges  in  an  indictment  for  robbery.  State  v. 
Hobgood  et  al,  46  La.  Ann.  855. 

Evidence. — Testimony  that  the  prosecuting  witness  had  in  his  possession 
a  short  time  prior  to  the  alleged  robbery,  money  of  the  value  and  descrip- 
tion of  that  charged  to  have  been  taken,  is  admissible.  Bradley  v.  State, 
103  Ala.  15;  So.  Rep.  640;  1  Tayl.  Evi.,  §g  335,  336. 

Distinction  between  robbery  and  larceny  from  the  person. — To  con- 
stitute robbery,  as  distinguished  from  larceny  from  the  pereon.  there  must 
be  force  or  intimidation  in  the  act.  Fanning  v.  State,  66  Ga.  167;  i  Am. 
Cr.  Rep.  561. 


State  v.  Hermann  et  al. 


(117  Mo.  629.) 
Homicide;  Fourth  degree — Principals — Evidence— Declarations. 

1.  On  a  prosecution  for  the  killing  of  a  person  while  present  at  a  flght  be- 
tween J.  and  G.,  testimony  as  to  what  B.  said  to  J.  with  regard  to  G., 
in  tlie  presence  of  deceased,  was  properly  excluded,  there  being  no  pre- 
tense that  deceased  said  anything  that  might  characterize  his  subse- 
quent conduct. 

8.  Manslaughter  in  the  fourth  degree  being  the  intentional  killing  of  a  hu- 
man being  in  the  heat  of  passion,  on  a  reasonable  provocation,  without 
malice  and  without  premeditation,  and  under  circumstances  that  will 
not  render  the  killing  justifiable,  or  (Rev.  St.,  §  3476)  the  involuntary 
killing  of  another  by  a  weapon  or  by  means  neither  cruel  nor  unusual, 
in  the  heat  of  passion,  in  any  case  other  than  justifiable  homicide — 


l-'t 


flij 


■  * 


su 


AMERICAN  CRIMINAL  REPORTS. 


i 


i 


where  two  persons  ran  together  to  the  scene  of  a  fight,  and  one  of  them 
shouting,  "  Slioot  them  downl "  threw  a  club  at  a  person  present,  which 
knocked  liim  down,  and  the  other  grabbed  him  as  he  attempted  to  rise, 
and  struck  him,  the  two  may  be  equally  guilty,  though  the  blow  which 
caused  death  was  that  received  from  the  club  first  thrown. 
3.  The  exclusion  of  a  conversation  between  deceased  and  one  of  tliose  en- 
gaf^od  in  the  fight,  occurring  prior  thereto,  can  not  be  treated  as  error  in 
the  absence  of  evidence  as  to  the  nature  of  the  conversation. 

Appeal  from  Circuit  Court,  Linn  County;  G.  D.  Burgess, 
Judge. 

Joseph  Hermann  and  Baptiste  Hermann  were  convicted  of 
manslaughter,  and  appeal.    Affirmed. 

O.  F.  Sin  ith  and  Crawley  cfe  Son,  for  appellants. 
R.  F.  Wiilker,  Attorney-General,  and  Morton  Jourdan,  As- 
sistant Attorney-General,  for  the  State. 

Gantt,  p.  J.  At  the  adjourned  term  of  the  Chariton 
Count\'  Circuit  Court  the  grand  jury  returned  an  indictment 
against  the  defendants.  It  consisted  of  two  counts.  Tiie  first 
count  charged  defendants,  Joseph  and  Baptiste  Hermann,  with 
murder  in  the  second  degree  in  the  killing  of  one  Joseph  A. 
Brown  on  the  13th  of  December,  1890.  The  second  charsrcd 
Baptiste  Hermann  with  being  accessory  to  the  crime.  At 
said  term  defendants  were  arraigned,  and  each  for  hims(!lf  en- 
tered a  plea  of  not  guilty.  They  jointly  filed  their  ap|)]ica- 
tion  and  affidavit  for  a  change  of  venue,  which  was  allowed, 
and  the  cause  ordered  transferred  to  the  Linn  Circuit  Court, 
held  at  Brookfield,  Mo.  At  the  February  term  of  the 
Linn  Circuit  Court,  held  at  Brookfield,  the  cause  was  continued, 
upon  the  application  of  defendants,  until  the  regular  Septem- 
ber term,  1891,  at  which  term  the  defendants  were  tried,  con- 
victed of  manslaughter  in  the  fourth  degree,  and  their  punish- 
ment assessed  at  two  years  in  the  penitentiary.  After 
unsuccessful  motion  for  a  new  trial  and  in  arrest,  they 
appealed  to  this  court. 

The  evidence  tended  to  prove  these  facts :  That  on  the  13th 
day  of  December,  1890,  the  defendants,  the  deceased,  and  sev- 
eral other  parties  attended  a  turkey  shcoting  match  on  the 
farm  of  the  widow  Grotjon  in  Chariton  county.  Mo.  That 
during  tlie  progress  of  the  shooting  match  a  dispute  arose  be- 
tween Bates  Johnson  and  Ed.  Grotjon,  which  resulted  in  a 


STATE  V.  HERMANN.  315 

fiorht  between  these  two  parties.  Others  soon  participated  in 
the  trouble,  and  when  one  Henry  Laker  ran  in,  the  deceased, 
Joe  l)io\vn,  told  him  to  stand  off.  The  defendants  then  came 
running  up,  one  with  a  club  and  the  other  with  a  shot-gun. 
Joe  Hermann  laid  down  his  gun  and  picked  up  a  club,  which 
he  threw  at  and  struck  Joe  Brown  on  the  left  side  of  the  head. 
From  the  effects  of  the  blow  Brown  staggered  and  fell,  when 
Bai>tiste  Hermann  jumped  up  and  grabbed  Brown,  and  struck 
him  three  or  four  licks  in  the  face  with  his  fist.  All  the 
l)arties  then  stopped  fighting,  and  Brown  started  home  in 
company  with  the  negro  boy,  Hez  Moore,  who  lived  with  his 
fatlier.  Along  the  road  Brown  was  compelled  to  sit  down 
and  rest,  and  complained  of  a  very  serious  pain  in  his  head. 
After  going  home  he  retired,  and  remained  in  betl  three  or 
four  hours,  when,  from  the  effects  of  the  blow  with  the  club, 
he  died.  The  doctors  (the  coroner  and  his  assistant)  who  held 
an  autopsy,  found  under  the  skull  bone  a  clotted  mass  of  blood. 
They  testify  that  death  resulted  from  concussion  occasioned 
by  tlie  blow.  The  defendants  were  both  arrested  the  same 
night,  about  midnight,  by  sheriff  Anderson,  to  whom  each  of 
them  denied  the  fact  that  Joseph  Hermann  had  thrown  the 
chih,  but  said  to  the  sheriff  that  Plenry  Laker  had  thrown  the 
clul)  tiiat  struck  Brown  and  knocked  him  down.  Upon  the 
trial  of  the  case  defendants  testified  that  Joseph  Hermann 
threw  the  club;  that  at  the  time  he  did  so  Brown  was  advanc- 
ing upon  him  with  a  club  raised;  that  it  was  thrown  in  self- 
defense.  They  are,  however,  contradicted  by  other  witnesses, 
who  all  say  that  Brown  was  standing  perfectly  still  at  a  dis- 
tance variously  estimated  from  five  to  fifteen  feet;  that 
the  two  Hermanns  ran  up  to  where  the  fight  was  in  progress 
between  Johnson  and  Grotjon,  and  that  defendant  Joseph 
Hermann  said :  "  Shoot  them  down,  every  one  of  thorn !  "  It 
also  appears  from  the  testimony  that  when  the  difficulty  first 
arose,  Brown  was  at  the  barn,  some  distance  from  the  place  of 
quarrel.  Baptiste  Hermann  was  a  son-in-law  of  Mrs.  Grotjon, 
and  resided  on  her  farm  at  the  time  of  the  killing.  The  rul- 
ings of  the  court  will  appear  in  the  further  discussion  of  the 
assignments  of  error. 

1.  During  the  cross-examination  of  the  witness  Johnson 
liurnett,  counsel  for  defendants  asked  him  if  he  communicated 
to  Bates  Johnson  anything  Ed.  Grotjon  had  said  about  the 


■i:  •' 


W^-VWf:rr 


316 


AMERICAN  CRIMINAL  REPORTS. 


turkeys.  The  objection  of  the  prosecuting  attorney  to  the 
question  as  irrelevant  was  sustained.  Witness  was  then  asked 
if  he  made  any  kind  of  communication  to  Bates  Johnson  with 
regard  to  Ed.  Grotjon  in  the  presence  of  deceased.  The  ob- 
jection to  this  was  also  sustained.  No  otfer  was  made  to  show 
what  the  communications  were,  or  how  they  were  material  to 
the  issue  on  trial.  What  Burnett  said  to  Bates  Johnson  was 
foreign  to  the  case.  The  question  did  not  disclose  anything 
that  was  material,  and  the  answers  were  properly  excluded. 
There  was  no  pretense  that  the  deceased  said  or  did  anything 
there  that  might  characterize  his  subsequent  conduct.  State 
V.  Botifflass,  81  Mo.  231. 

2.  It  is  next  insisted  that  the  court  should  have  directed  a 
verdict  of  acquittal  as  to  Baptiste  Hermann,  and  the  refusal 
of  the  circuit  court  to  so  instruct,  either  at  the  close  of  the 
state's  case  or  after  all  the  evidence  was  in,  is  urged  as  error. 
There  is  much  evidence  that  Joseph  and  Baptiste  Hermann 
came  on  the  scene  simultaneously,  Joseph  armed  with  a  gun, 
Baptiste  with  a  club ;  that  Joseph  laid  down  his  gun  and  took 
up  a  club,  which  he  threw  at  and  struck  the  deceased,  IJrown, 
on  the  left  side  of  the  head.  There  was  evidence  that  this 
club  was  a  deadly  or  dangerous  weapon.  Baptiste  was  pres- 
ent. He  heard  his  brother  shout,  as  they  ran  together  to  the 
place  of  difficulty  between  Johnson  and  Grotjon,  "  Shoot  them 
dow^n,  every  one  of  them!"  After  this  he  saw  his  brother 
assault  Brown,  the  deceased,  with  a  club,  and  knock  him  down. 
There  is  evidence,  then,  that  as  the  deceased  attemptetl  to  rise, 
the  defendant,  Baptiste,  to  use  the  language  of  the  witness, 
"  grabbed  him,  and  commenced  to  hit  him."  Another  witness 
says,  "  He  jumped  on  him,  and  hit  him  with  his  fist."  Brown 
died  that  night  from  the  effects  of  the  blows  received  in  the 
encounter.  From  this  evidence  the  jury  might  well  find  that 
they  were  both  actively  aiding,  assisting  and  abetting  each 
other,  and  therefore  both  were  principals,  and  each  responsible 
for  the  crime  committed  by  the  other  in  their  united  and  com- 
bined assault  upon  the  deceased.  But  it  is  argued  that  de- 
fendant Baptiste  can  not  be  convicted  of  manslaughter,  because 
Joseph,  whom  he  was  aiding  and  abetting,  struck  the  blow 
which  caused  the  death  of  Brown,  and  was  only  convicted  of 
manslaughter,  and  that  in  manslaughter  there  can  be  no  such 
thing  as  an  accessory  before  the  fact. 


STATE  V.  HERMANN. 


317 


In  SMo  V.  PhilUpa  (Mo.  Sup.),  22  S.  "W.  Rep.  1079,  it  was 
said  ui'(jaendo  tliat  tliere  could  be  no  accessory  in  manslaugh- 
ter, an<l  citing  Bihithe's  Case,  4  Coke,  43b;  1  Hale  P.  0.  437. 
If  this  statement  could  be  confined  and  limited  to  those  homi- 
cides denominated  at  common  law  as  "involuntary  man- 
slaughter,"— ^^  homicide  per  infoHuni^urC^ — it  would  appear 
to  be  founded  on  reason;  but,  inasmuch  as  by  our  statute  all 
accessoi'ies  before  the  fact  are  now  made  principals,  and  the 
distinction  between  principals  in  the  first  and  second  degree 
has  been  abolished,  the  rule  stated  in  1  Hale,  P.  C.  437,  and 
cited  in  State  v.  Phillips,  supra,  is  too  broad  under  our  stat- 
utes, and  was  not  necessary  to  the  decision  of  that  case. 
Bishop,  in  his  first  volume  of  Criminal  Law  (8th  Ed.,  §  678), 
says  that  manslaughter  does  not  commonly  admit  of  an  ac- 
cessory before  the  fact,  "yet  probabl}"^  there  may  be  man- 
slaughter wherein  this  is  not  so."  "And  there  may  be  princi- 
pals of  the  second  degree  of  manslaughter."  The  dictum  of 
Lord  Hale  was  expressly  considered  in  Gaylor''s  Case,  Dears. 
iSi  B.  Cr.  Cas.,  288,  in  1857,  and  it  was  said  by  Erie,  J.,  on  ap- 
peal :  "  If  manslaughter  be  per  infortuniam  or  se  defendendo, 
there  is  no  accessory;  but  there  are  other  cases  in  which  there 
may  be  accessories.  That  seems  to  be  the  solution  of  Lord 
llale's  dictum.  In  7  Cox,  Crim.  Cas.,  253,  the  same  case  is  re- 
ported, and  Erie,  J.,  is  made  to  say:  "  It  is  clear  that  Lord 
Hale,  in  laying  down  the  law  in  the  passage  cited  (the  same 
cited  in  Phillips'  case)  only  alludes  to  causes  of  killing  per 
infortuniuni  or  se  defendendo.  In  other  cases  of  manslaughter 
there  seems  to  be  no  reason  why  there  may  not  be  acces- 
sonco  "  And  such  is  the  reasoning  of  Bishop,  1  Crim.  Law, 
348,  A.  2,  in  which  he  shows  that  the  absence  of  malice  reduces 
the  homicide  from  murder  to  manslaughter  in  voluntary  man- 
slaughter. See  also,  Reg.  v.  Murphy,  6  Car.  &  P.  103.  In 
Utipp  V.  State,  11  Ind.  62,  this  question  came  before  the 
supreme  court  of  that  state  upon  a  state  of  facts  identical  in 
principle  with  those  in  the  case  at  bar,  and  it  was  insisted  that 
because  the  prisoner  did  not  give  the  blow,  and  because  there 
could  be  no  accessories  before  the  fact  in  manslaughter,  he 
could  not  be  convicted;  but  the  court  held  that  it  was  not  nec- 
essary he  should  aid  in  striking  the  blow,  but  if  he  was  en- 
gaged with  the  person  who  gave  the  blow  which  caused  the 
death,  in  the  common  illegal  undertaking,  he  was  guilty  as  a 


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AMERICAN    CRIMINAL  REPORTS. 


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principal.  In  Go//'  v.  Prime,  2G  Ind.  IHO,  the  same  court, 
under  a  statute  which  defined  manslaughter  thus — "If  iuiy 
person  shall  unlawfully  kill  any  human  being  without  malice, 
express  or  implied,  either  voluntarily,  upon  a  sudden  heat,  or 
involuntarily,  but  in  the  commission  of  some  unlawful  act.  such 
person  shall  be  deemed  guilty  of  manslaughter" —  held  that 
one  who  was  present  aiding  and  abetting  in  the  commission 
of  a  common  assault  and  battery,  resulting  in  the  accidental 
death  of  the  person  assaulted,  might  be  guilty  of  aiding  and 
abetting  in  the  perpetration  of  the  crime  of  nuinslaughtev.  In 
ILujan  V.  State,  10  Ohio  St.  451),  under  a  similar  statute,  the 
Supreme  Court  of  Ohio  held  that  the  element  which  constituted 
the  crime  of  manslaughter  as  defined  by  that  statute  did  not 
preclude  the  possibility  that  there  might  be  aiders  and  abet- 
tors before  the  fact  in  the  commission  of  manslaughter. 

In  State  v.  Coleman,  5  Port.  (Ala.)  32,  the  Supreme  Court  of 
Alal)ama  said :  "  Upon  authority  it  seems  unquestionable  tliat 
there  may  be  aidersand  abettors  in  manslaughter,"  and  Russell 
(1  Crimes,  456)  lays  it  down  that  "  in  order  to  make  an  abettor 
to  a  manslaughter  a  principal  in  the  felony,  he  must  be])resont 
aiding  and  abetting  the  fact  committed."  Under  our  statute 
(section  3944,  Rev.  St.  1SS9),  all  distinctions  between  ])rinci])iils 
and  accessories  before  the  fact  have  been  abolished,  and  an  ac- 
cessory before  the  fact  can  be  indicted  and  convicted  as  a  prin- 
cipal. State  V.  Stacij,  103  Mo.  11,  15  S.  W.  Rep.  147,  and 
cases  there  cited.  Manslaughter  in  the  fourth  degree,  under 
the  statutes  of  this  state,  has  often  been  defined  by  this  court 
to  be  the  intentional  killing  of  a  human  being  in  a  heat  of  pas 
sion  on  a  reasonable  provocation  without  malice,  and  witliout 
premeditation,  and  under  circumstances  that  will  not  render 
the  killing  justifiable  or  excusable  homicide;  and  section  347<) 
further  defines  it  to  be  "  the  involuntary  killing  of  another  by 
a  weapon,  or  by  means  neither  cruel  nor  unusual,  in  the  heat 
of  passion,  in  any  case  other  than  justifiable  homicide."  State 
V.  Mils,  74  Mo.  215;  State  v.  D'leckman,  75  Mo.  570;  State  v. 
Umfried,  76  Mo.  404;  State  v.  Douglass,  81  Mo.  231.  Under 
these  statutes  no  reason  is  seen  why  two  or  more  engaged  in 
a  common  assault  upon  another,  may  not  be  engaged  in 
the  killing  of  a  human  being  in  the  heat  of  passion,  and  upon 
the  same  provocation;  and  if  all  present  are  aiding  and  abet, 
ting  each  other,  why  they  are  not  all  principals,  and  equally 


STATE  V.  HERMANN. 


31'.) 


o-uilty  of  manslaughter  if  death  ensues,  even  thouyli  only  one 
strik<'s  tlie  fatal  blow.  There  was  evidence  to  this  elfect  in 
this  case,  and  it  was  so  found  by  the  jur}'.  We  perceive  no 
error  in  the  action  of  the  court  overruling  the  demurrer  to  the 
eviilenco,  and  refusing  the  two  instructions  drawn  for  that  pur- 
pose. T  -  nder  the  evidence,  liaptiste  was  a  princii)al,  and  not 
an  accessory  before  the  fact  at  common  law,  even  under  Lord 
Hale's  (lefinitiim,  as  he  was  present,  not  absent,  when  the  crime 
was  committed.  1  Hale,  P.  C,  G17;  4  131.  Comm.  37;  Hex  v. 
Goiuloi),  1  Leach  5L5;  People  v.  JJear.ss,  10  Cal.  OS;  Kelley, 
Crim  Law,  §  41). 

3,  I^efendants  complain  that  their  witness  Fred  Emmert  was 
not  permitted  to  tell  all  the  conversation  that  occurred  between 
Brown,  the  deceased,  and  Bates  Johnson;  but  as  in  tlie  case  of 
Burnett,  defendant  made  no  attempt  to  show  the  court  the  rel- 
evancy or  materiality  of  all  that  conversation,  and  tlio  court 
did  permit  the  witness  to  state  that  Bates  Johnson  said  that  he 
was  going  to  whip  Ed.  Grotjon,  and  asked  deceased  to  stay 
with  him,  and  deceased  said  that  ho  would  stay  with  him.  In 
the  al)sence  of  all  evidence  as  to  what  statements  were  ex- 
cluded or  their  nature,  we  can  not  assume  they  were  of 
such  relevanc}'  or  importance  as  to  require  a  reversal  of  this 
cause.  Jiankv.  AuWs  A<hii\',  SO  Mo.  199;  State  v.  Douylasts, 
SI  Mo.  231. 

4.  Tile  fourth  and  fifth  instructions,  read  together,  correctly 
informed  the  jury  that  if  the  defendants,  while  in  the  heat  of 
passion,  aroused  by  the  fighting  and  quarreling  of  deceased 
with  friends  and  neighbors  of  defendants,  threw  the  club,  and 
struck  and  killed  Brown,  not  in  a  cruel  or  unusual  manner,  and 
without  malice,  and  not  in  self-defense,  they  were  guilty  of 
manslaughter  in  the  fourth  degree;  and  if  Joseph  Hermann 
threw  the  stick  and  killed  Brown  under  these  circumstances, 
and  tliat  Baptiste  was  present  at  the  time,  aiding,  assisting 
and  helping  Joseph  in  the  perpetration  of  said  assault,  then 
both  were  equally  guilty.  These  two  instructions  fairly  pre- 
sented the  law  of  the  case  to  the  jury,  and  defendant's  excep- 
tions must  be  overruled.  There  was  evidence  to  support  them 
both.  The  other  instructions  were  full  and  liberal  to  the  de- 
fendants Oil  the  presumption  of  innocence,  the  benefit  of  rea- 
sonable doubt,  and  self-defense.    We  find  no  error  in  either  of 


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320 


AMERICAN  CRIMINAL  REPORTS. 


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them,  and  there  boinjj  sufficient  evidence  to  submit  the  case  to 
the  jury,  their  verdict  must  stand.    Judgment  alfirmed. 

SiiuuwooD,  J.,  concurs.    Bukgess,  J.,  not  sitting. 


Smith  v.  State. 

(108  Ala.  4.) 
Homicide:  Murder  in  the  first  degree— Effect  of  pannion. 

1.  Passion  aroused  by  mere  words  can  not  reduce  liomiciJu  Ih>1ow  tlio 

crime  of  murder  in  tlie  second  degree. 

2.  As  an  indictment  for  murder  in  the  first  degree  includes  nil  decrees  of 

homicide,  the  court  properly  refused  to  charge  that  if  the  killiii},'  was 
done  in  the  heat  of  passion,  defendant  could  nut  be  found  guilty  "  ns 
charged  in  the  indictment." 

3.  On  a  trial  for  murder,  a  request  to  charge  that  if  the  killing  was  doiu' 

when  defendant  was  "  in  great  passion,  not  having  suflicient  time  f(ir 
his  blood  to  cool,  then  he  is  not  guilty  of  murder  in  the  first  degree." 
was  properly  refused,  as  it  permits  no  inquiry  as  to  whether  dcfcndntit 
or  deceased  was  the  aggressor  in  the  altercation  which  aroused  defend- 
ant's piission. 

4.  Passion,  without  reasonable  cause,  will  not  be  taken  into  account  in 

determining  the  degree  of  murder. 

Appeal  from  City  Court  of  Montgomery;  Thomas  M.  Arriiip- 
ton.  Judge. 

Ililliard  Smith  was  convicted  of  murder  in  the  first  dog 
and  appeals.    Affirmed. 

Tiie  testimony  for  the  state  tended  to  show  that  upon  tliu 
deceased,  who  was  in  his  field  in  front  of  the  house  of  the  de- 
fendant, calling  to  the  defendant  to  come  and  let  him  show 
defendant  where  his  (defendant's)  hogs  had  destroyed  some  of 
the  crop  of  the  deceased,  the  defendant  went  down  to  where 
the  deceased  was  standing;  that  they  became  engaged  in  a 
dispute  as  to  whether  or  not  it  was  the  defendant's  hogs  that 
had  destroyed  the  crop,  and  that,  upon  the  deceased  saying 
that  his  daughter  had  told  him  that  it  was  the  defendant's 
hogs,  he  applied  opprobrious  epithets  to  the  deceased's  daughter 
and  also  cursed  the  deceased;  the  deceased  replied,  "  Yoxx  arc> 
another; "  that  thereupon  the  defendant  told  the  deceased  that 


SMITH  V.  STATE. 


821 


if  he  would  would  wait  until  ho  went  to  his  houRO,  which  was 
about  100  yards  otf,  and  got  his  gun,  he  would  come  back  and 
i(ill  tlie  deceased;  that  the  deceased  remained  in  his  field  while 
the  ilofendant  ran  to  his  house,  got  his  gun,  and  on  coming 
back,  a^'ain  cursed  the  deceased,  and  dared  him  to  "  call  him 
another"  again;  that  upon  the  deceased  saying,  "  You  are 
another,"  the  defendant  shot  and  killed  him.  The  testimony 
for  the  defendant  tended  to  show  that  when  ho  said  to  him 
that  his  daughter  had  told  him  a  lie,  the  deceased  cursed  him; 
that  thereupon  he  (the  defendant)  said  that  ho  "did  not  want 
a  fuss,"  but  that  deceased  continued  to  curse  him,  and  advanced 
on  liini  with  a  knife;  that  he  retreated  until  near  his  house, 
wliere  ho  went,  got  his  gun,  and  as  he  came  out  of  his  yard 
with  it  the  deceased  continued  to  advance  upon  him  with  the 
knife,  wiiereupon  "  he  sto[)ped  him  "  by  shooting  him.  Upon 
the  introduction  of  all  the  evidence  the  defendant  requested 
the  court  to  give  to  the  jury  the  following  written  charges, 
and  soparatoly  excepted  to  the  court's  refusal  to  give  each 
of  tlieiu  as  asked :  ( I)  "  If  the  jury  find  from  the  evidence  that 
at  the  tims  Jlilliard  Smith  killed  Charles  Pickott  he  acted 
under  the  heat  of  passion,  not  having  had  time  for  his  blood 
to  cool,  they  can  not  find  the  defendant  guilty  of  murder." 
(2)  "  If  the  jury  believe  from  the  evidence  that  deceased 
brought  on  the  difficulty,  and  so  much  enraged  this  defendant 
and  while  still  under  the  heat  of  such  passion  the  defendant 
killed  docoiased,  then  they  can  not  find  the  defendant  guilty  as 
charged  in  the  indictment."  (3)  "  If  the  jury  find  that  Hilliard 
S  lith  took  the  life  of  Charles  Pickett  while  in  a  great  passion, 
not  having  sufficient  time  for  his  blood  to  cool,  then  he  is  not 
guilty  of  murder  in  the  first  degree."  (4)  "  If  the  jury  find 
the  killing  was  done  in  the  heat  of  blood,  although  with  a 
deadly  weap  'U,  yet  if  there  be  no  evidence  of  previous  malice, 
formed  design,  or  such  evidence  of  deliberation  as  to  show  that 
reason  held  sway,  then  this  is  not  murder  as  charged  in  the 
indictment."  (5)  "If  the  jury  find  from  the  evidence  the 
homicide  was  committed  in  the  undue  resentment  of  an  insult 
offered,  if  >ione  in  the  heat  of  blood  caused  thereby,  before 
cooling  time  has  supervened,  and  without  any  previous  formed 
design,  it  can  not  be  murder,  and  the  jury  can  not  so  find." 
(6)  "  Though  the  jury  may  find  the  provocation  for  the  killing 
not  such  as  to  excuse  the  offense^  yet  if  they  also  find  that  it 
21 


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iiif. 


322 


AMERICAN  CRIMINAL  REPORTS. 


was  such  as  to  throw  and  did  throw  this  defendant,  Ililliard 
Smith,  into  such  a  heat  of  passion  that  he  killed  the  deceased, 
and  that  at  the  time  he  did  the  killing  he  was  still  ruled  and 
swayed  by  such  passion,  then  they  can  not  find  the  defendant 
guilty  of  murtler." 

Clark  &  Thomas,  for  appellant. 

Wm.  L.  Martin,  Attorney-General,  for  the  State. 

McClellan,  J.  Ililliard  Smith  killed  Charles  Pickett  by 
shooting  him  with  a  gun.  The  evidence  for  the  defendant 
(his  own)  tends  to  show  that  he  shot  in  the  heat  of  passion. 
The  evidence  for  the  state  tends  to  show  that  there  was  no 
provocation  for  defendant's  passion,  except  mere  words  spoken 
to  him  by  the  deceased  in  response  to  words  of  like  abusive 
character  first  addressed  by  the  defendant  to  the  deceased.  On 
these  tendencies  of  the  evidence  the  jury  might  have  found  that 
the  mortal  wound  was  inflicted  in  the  heat  of  passion  engen- 
dered by  mere  words  alone.  80  finding,  the  necessary  eti't'ct 
of  charges  1,  2,  4,  5,  and  6  requested  by  the  defendant  would 
have  been  to  authorize  the  jury  to  return  a  verdict  of  guilt  of 
a  lower  degree  of  homicide  than  murder  in  the  second  degree ; 
and  each  of  said  charges  was  therefore  bad  on  this,  as  well  as 
perhaps,  on  other  grounds,  since  no  prin(;iple  in  our  criminal 
jurisprudence  is  more  firmly  established  than  that  passion 
aroused  by  mere  words  can  not  reduce  homicide  bolow  the  of- 
fense of  L.^rder  in  the  second  degree.  Mitchell  v.  State,  Git 
Ala.  26 ;  Nutt  v.  State,  63  Ala.  ISO ;  Ex  j)arte  Brown,  (55  Ala. 
466  ;  Roherts  v.  State,  68  Ala.  156 ;  Martin  v.  State,  77  Ala.  1 ; 
Watson  V.  State,  82  Ala.  10,  2  South.  455  ;  Ilolmea  v.  State,  88 
Ala.  26,  7  South.  193 ;  Ev parte  Sloan,  95  Ala.  22,  11  South.  14. 

The  indictment  in  this  case  charged  not  only  murder  in  the 
first  degree,  but  also  murder  in  the  second  degree,  and  all  other 
grades  of  homicide.  Charges,  therefore,  which  were  per- 
haps intended  to  declare  that  on  certain  postulates  the  jury 
could  rot  convict  the  defendant  of  murder  in  the  first  degree, 
but  .vluoh  in  terms  declared  that  they  could  not  convict  him 
as  charged  in  the  indictment  (charge  2,  for  instance),  or  which 
assumed  that  murder  in  the  second  degree  "  is  not  murder  as 
charged  in  the  indictment" — the  postulates  justifying,  it  may 
be  conceded,  the  conclusion  as  to  murder  in  the  first  degree, 


SMITH  V.  STATE. 


323 


but  having  no  bearing  upon  any  lower  degree  of  homicide- 
were  essentially  confusing  and  misleading.  This  is  an  addi- 
tional reason  for  the  lefusal  of  charges  2  and  4  requested  by 
the  defendant.  Horn  v.  State,  98  Ala.  23,  13  South.  329 ;  Bland 
V.  State,  75  Ala.  574;  Jones  v.  State,  96  Ala.  103,  11  South.  399; 
Lund}/  V.  State,  91  Ala.  100, 9  South.  189. 

All  the  charges  refused  to  the  defendant,  moreover — that 
numbered  3,  as  well  as  others  to  which  we  have  before  referred 

were  bad  for  the  reason  that  they  permit  no  inquiry  as  to 

whether  the  defendant  or  the  deceased  was  the  aggressor  in 
the  altercation  in  which  the  words  of  abuse,  which,  on  one 
aspect  of  the  evidence,  constituted  the  sole  provocation  for  the 
defendant's  passion,  were  employed  ;  and  this  omission  of  the 
charges  is  especially  pernicious  in  view  of  the  fact  that  the 
evidence  is  substantially  without  conflict  to  the  imputation  of 
fault  and  aggression  to  the  defendant  in  that  connection.  Allen 
V.  State,  52  Ala.  391;  Jones  v.  State,  96  Ala.  102,  11  South. 
309. 

Charge  3  is  bad  also  for  another  reason.  The  evidence  is, 
without  conflict  or  adverse  inference,  to  the  eff'ect  that  after 
the  alleged  passion-engendering  words  of  the  deceased  had 
been  uttered  the  defendant  went  off  to  his  house  a  hundred  or 
two  yards  away,  got  his  gun,  and  came  with  it,  out  of  his  house 
and  the  curtilage  thereof,  back  to  where  the  deceased  was, 
and,  according  to  the  state's  evidence,  had  all  the  while  re- 
mained, and  there  shot  him.  This  charge  assumes,  in  neces- 
sary effect,  that  all  this  time  was  not  suflScient  for  the  defend- 
ant's passion  to  cool,  and  for  this  it  was  properly  refused. 

And  this,  as  also  charges  2  and  4 — if  we  are  to  consider  the 
latter  as  intended  to  assert  that  words  may  provoke  such  pas- 
sion as  will  reduce  homicide  from  murder  in  the  second  degree, 
— are  bad,  in  that  they  each  assume  the  reasonable  sufficiency 
of  llie  language  employed  by  the  deceased  to  excite  mitigating 
passion  in  the  defendant,  when,  so  far  as  that  ])assion  being 
justified,  the  court  might  well  have  instructed  the  jury,  as 
matter  of  laAV,  that  the  words  shown  bv  the  state's  evidence  at 
least  did  not  constitute  provocation  for  any  mitigating  passion 
on  the  part  of  the  defendant,  and  if  they  found  no  other  prov- 
ocation for  passion  than  the  words  which  that  aspect  of  the 
evidence  tended  to  show,  it  was  whoUv  immaterial  whether 
the  defendant's  passions  were,  in  point  of  fact,  excited  or  not. 


f-i^i 


1 1 


*  ( 


11  ;, 


i,:m 


324 


AMERICAN  CRIMINAL  REPORTS. 


A  passion  thus  without  reasonable  cause  and  immaterially  ex- 
cited is  not  a  passion  which  the  law  takes  into  account  in 
determining  whether  the  homicide  is  mostly  in  the  first  or  sec- 
ond degree.  9  Am.  &  Eng.  Enc.  Law,  pp.  579,  580;  Flanna- 
(jan  V.  State,  46  Ala.  703. 
Affirmed. 


Babe  Beard  v.  United  States. 

(158  U.  S.  550.) 

Homicide:    Justifiable,  tchen — Duty  to  retreat. 

A  man  assailed  on  his  own  grounds,  without  provocation,  by  a  person  armed 
with  a  deadly  weapon  and  apparently  seeking  his  life,  is  not  obliged  to 
retreat,  but  may  stand  his  ground  and  defend  himself  witli  such  means 
as  are  within  his  control,  and  so  long  as  there  is  no  intent  on  his  purt 
to  kill  his  antagonist  and  no  purpose  of  doing  anything  beyond  what 
is  necessary  to  save  his  own  life,  is  not  guilty  of  murder  or  man- 
slaughter if  death  results  tolas  antagonist  from  a  blow  given  him  under 
such  circumstances. 

Error  of  the  Circuit  Court  of  the  United  States  for  the  "West- 
ern District  of  Arkansas. 

The  case  is  stated  in  the  opinion. 

Ifr.  John  IT.  Hogera  and  Mr.  Ira  D.  Ogleshj,  for  plaintiff  in 
error. 

Mr.  Assistant  Attorney-General  Dickinson,  for  the  United 
States. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error,  a  white  man,  and  not  an  Indian,  was 
indicted  in  the  Circuit  Court  of  the  United  States  for  the  West- 
ern District  of  Arkansas  for  the  crime  of  having  killed  and 
murdered  in  the  Indian  country,  and  within  that  district,  one 
Will  Jones,  also  a  white  jjerson,  and  not  an  Indian. 

He  was  found  guilty  of  manslaughter,  and  a  motion  for  a 
new  trial  havinjr  been  overruled,  it  was  adjudged  that  he  be 
imprisoned  in  Kings  County  penitentiary,  at  Brooklyn,  N.  Y., 
for  the  term  of  eight  years,  and  pay  to  the  United  States  a  fine 
of  $500. 


BABE  BEARD  v.  UNITED  STATES. 


825 


The  record  contains  a  bill  of  exceptions  embodying  all  the 
evidence,  as  well  as  the  charge  of  the  court  to  the  jury,  and 
the  requests  of  the  accused  for  instructions.  To  certain  parts 
of  the  charge,  and  to  the  action  of  the  court  in  refusing  in- 
structions asked  by  the  defendant,  exceptions  were  duly  taken. 

The  principal  question  in  the  case  arises  out  of  those  parts 
of  the  charge  in  which  the  court  instructed  the  jury  as  to  the 
principles  of  the  law  of  self-defense. 

There  was  evidence  before  the  jury  tending  to  establish  the 
following  facts : 

An  angry  dispute  arose  between  TJeard  and  three  brothers 
by  the  name  of  Jones — Will  Jones,  John  Jones,  and  Edward 
Jones — in  reference  to  a  cow,  which  a  few  years  before  that 
time,  and  just  after  the  death  of  his  mother,  was  set  apart  to 
Edward.  The  children,  being  without  any  means  for  their 
support,  were  distributed  among  their  relatives,  Edward  being 
assiffned  to  Beard,  whose  wife  was  a  sister  of  Mrs.  Jones. 
Beard  took  him  into  his  family  upon  the  condition  that  he 
should  have  the  right  to  control  him  and  the  cow  as  if  the  lad 
were  one  of  his  own  children  and  the  cow  his  own  property. 
At  the  time  Edward  went  to  live  with  Beard  he  was  only  eight 
or  nine  years  of  age,  poorl}"^  clad,  and  not  in  good  physical 
condition. 

After  remaining  some  years  with  his  aunt  and  uncle,  Edward 
Jones  left  the  Beard  house,  and  determined,  with  the  aid  of 
his  older  brothers,  to  take  the  cow  with  him,  each  of  them 
knowing  that  the  accused  objected  to  that  being  done. 

The  Jones  brothers,  one  of  them  taking  a  shotgun  with  him, 
went  upon  the  premises  of  the  accused  for  the  purpose  of  tak- 
in^r  the  cow  away,  whether  Beard  consented  or  not.  But  they 
were  prevented  by  the  accused  from  accomplishing  that  object, 
and  he  warned  them  not  to  come  to  his  place  again  for  such  a 
purpose,  informing  them  that  if  Edward  Jones  was  entitled  to 
the  possession  of  the  cow,  he  could  have  it,  provided  his  claim 
was  successfully  asserted  through  legal  proceedings  instituted 
by  or  in  his  behalf. 

Will  Jones,  the  oldest  of  the  brothers,  and  about  twenty 
or  twenty-one  3'ears  of  age,  publicly  avowed  his  intention  to 
get  the  cow  away  from  the  Beard  farm  or  kill  Beard,  and  of 
that  threat  the  latter  was  informed  on  the  day  preceding  that 
on  which  the  fatal  difficulty  in  question  occurred. 


Hi 


.;  "•■■iwf?| 


826 


AMERICAN  CRIMINAL  REPORTS. 


In  the  afternoon  of  the  day  on  which  the  Jones  brothers 
were  warned  by  Beard  not  again  to  come  upon  his  premises 
for  the  cow  unless  attended  by  an  officer  of  the  law,  and  in  de- 
fiance of  that  warning,  they  again  went  to  his  farm,  in  his 
absence — one  of  them,  the  deceased,  being  armed  with  a  con- 
cealed deadly  weapon — and  attempted  to  take  the  cow  away, 
but  were  prevented  from  doing  so  by  Mrs.  Beard,  who  drove 
it  back  into  the  lot  from  which  it  was  being  taken. 

While  the  Jones  brothers  were  on  the  defendant's  premises 
in  the  afternoon,  for  the  purpose  of  taking  the  cow  away, 
Beard  returned  to  his  home  from  a  town  near  by — having  with 
him  a  shotgun  that  he  was  in  the  habit  of  carrying  when  ab- 
sent from  home — and  went  at  once  from  his  dwelling  into  the 
lot  called  the  "orchard  lot,''  a  distance  of  about  fifty  or  sixty 
yards  liora  his  house,  and  near  to  that  part  of  an  adjoining  field 
or  lot  where  the  cow  was,  and  in  which  the  Jones  brothers 
and  Mrs.  Beard  were  at  the  time  of  the  difficulty. 

Beard  ordered  the  Jones  brothers  to  leave  his  premises. 
They  refused  to  leave.  Thereupon  Will  Jones,  who  was  on  the 
opposite  side  of  the  orchard  fence,  ten  or  fifteen  yards  only  from 
Beard,  moved  toward  the  latter  with  an  angry  manner  and 
in  a  brisk  walk,  having  his  left  hand  (he  being,  as  Beard 
knew,  left-handed)  in  the  left  p(X5ket  of  his  trousers.  When  he 
got  within  five  or  six  steps  of  Beard,  the  latter  warned  him  to 
stop,  but  he  did  not  do  so.  As  he  approached  nearer,  the  ac- 
cused asked  him  what  he  intended  to  do,  and  he  replied, "  Damn 
you,  I  will  show  you,"  at  the  same  time  making  a  movement 
with  his  left  hand  as  if  to  draw  a  pistol  from  his  pocket,  where- 
upon the  accused  struck  him  over  the  head  with  his  gun,  and 
knocked  him  down. 

"  Believing,"  the  defendant  testified,  "  from  his  demonstra- 
tions just  mentioned,  that  he  intended  to  shoot  me,  I  struck 
him  over  the  head  with  my  gun,  to  prevent  him  killing  me. 
As  soon  as  I  struck  him,  his  brother  John,  who  was  a  few 
steps  behind  him,  started  toward  me  with  his  hand  in  his 
pocket.  Believing  that  he  intended  to  take  part  in  the  dif- 
ficulty, and  was  also  armed,  I  struck  him,  and  he  stopped.  I 
then  at  once  jumped  over  the  fence,  caught  Will  Jones  by  the 
lapel  of  the  coat,  turned  him  rather  to  one  side,  and  pulled  his 
left  hand  out  of  his  pocket.  He  had  a  pistol,  which  I  found 
in  his  pocket,  grasped  in  his  left  hand,  and  I  pulled  his  pistol 


BABE  BEARD  v.  UNITED  STATES. 


327 


and  his  left  hand  out  together.  My  purpose  in  doing  this  was 
to  disarm  him,  to  prevent  him  from  shooting  me,  as  I  did  not 
know  how  badly  he  was  hurt.  My  gun  Avas  loaded,  having 
ten  cartridges  in  the  magazine:  I  could  have  shot  him,  but 
did  not  want  to  kill  him,  believing  that  I  could  knock  him 
down  with  the  gun,  and  disarm  him,  and  protect  myself  with- 
out shooting  him.  After  getting  his  pistol,  John  Jones  said 
something  to  me  about  killing  him,  to  which  I  replied  that  I 
had  not  killed  him,  and  did  not  try  to  do  so,  for  if  I  had  I 
could  have  shot  him.  He  said  my  gun  was  not  loaded.  There- 
upon I  shot  the  gun  in  the  air  to  show  him  that  it  was  loaded." 

Dr.  Howard  Hunt,  a  witness,  on  behalf  of  the  government, 
testified  that  he  called  to  see  Will  Jones  soon  after  he  was  hurt 
and  found  him  in  a  serious  condition;  that  he  died  from  the 
eifects  of  a  wound  given  by  the  defendant;  that  the  wound 
Avas  across  the  head,  rather  on  the  right  side,  the  skull  being 
crushed  by  the  blow.  He  saw  the  defendant  soon  after  dress- 
insr  the  wound,  and  told  him  that  the  deceased's  condition  was 
serious,  and  that  he,  the  witness,  was  sorr}'  the  occurrence  had 
happened.  The  witness  suggested  to  the  accused  that  perhaps 
he  had  better  get  out  of  the  way.  The  latter  replied  that  he 
was  sorry  that  it  had  happened,  but  that  he  acted  in  self- 
defense,  and  would  not  go  away.  Beard  seemed  a  little 
oifended  at  the  suggestion  that  he  should  run  off,  and  observed 
to  the  witness  that  the  latter  could  not  scare  him,  for  he  was 
perfectly  justified  in  what  he  did.  This  witness  further  testi- 
fied that  he  had  known  the  defendant  four  or  five  years;  was 
well  acquainted  in  the  neighborhood  in  which  he  lived,  and 
knew  his  general  reputation,  which  was  that  of  a  peaceable, 
law-abiding  man. 

The  account  we  have  given  of  the  difficulty  is  not  in  har- 
mony, in  every  particular,  with  the  testimony  of  some  of  the 
witnesses,  but  it  is  sustained  by  what  the  accused  and  others 
testified  to  at  the  trial;  so  that,  if  the  jury  had  found  the  facts 
to  be  as  we  have  detailed  them,  it  could  not  have  been  said  that 
their  finding  was  contrary  to  the  evidence.  At  any  rate,  it  was 
the  duty  of  the  court  to  tell  the  jury  by  what  principles  of  law 
they  should  be  guided,  in  the  event  they  found  the  facts  to  be 
as  stated  by  the  accused. 

Assuming,  then,  that  the  facts  were  as  we  have  represented 
them  to  be,  we  are  to  inquire  whether  the  court  erred  in  its 


■mynf 


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32S 


AMERICAN  CRIMINAL  REPORTS. 


i'l: 


charge  to  the  jury.  In  the  view  we  t.ake  of  the  case,  it  will  be 
necessary  to  refer  to  those  parts  only  of  the  charge  relating  to 
the  law  of  self-defense. 

The  court  stated  at  considerable  length  the  general  niUs 
that  determine  whether  the  killing  of  a  human  being  is  iiiui- 
der  or  manslaughter,  and  among  other  things,  said  to  tlie 
jury,  "  If  these  boys,  or  young  men,  or  whatever  you  may  con- 
sider them,  went  down  there,  and  they  were  there  unlawfully— 
if  they  had  no  right  to  go  there — you  naturally  inquire  whether 
the  defendant  was  placed  in  such  a  situation  as  that  he  could 
kill  for  that  reason.  Of  course  he  could  not.  He  could  not 
kill  them  because  they  were  upon  his  place.  *  *  *  And  if 
these  young  men  were  there  in  the  act  of  attempting  the  lar- 
ceny of  this  cow  and  calf,  and  the  defendant  killed  because  of 
that,  because  his  mind  was  inflamed  for  the  reason  that  they 
were  seeking  to  do  an  act  of  that  kind,  that  is  manslaughter. 
That  is  all  it  is.  There  is  nothing  else  in  it.  That  is  con- 
sidered so  far  provocative  as  that  it  reduces  the  grade  of  the 
crime  to  manslaughter  and  no  further.  If  they  had  no  intent 
to  commit  a  larcen^^  if  it  was  a  bare,  naked  tresjjass,  if  they 
were  there  under  a  claim  of  right  to  get  this  cow,  though  they 
may  not  have  had  any  right  to  it,  but  in  good  faith  they  were 
exercising  their  claim  of  that  kind,  and  Will  Jones  was  killed 
by  the  defendant  for  that  reason — that  would  be  murder,  he- 
cause  you  can  not  kill  a  man  for  bare  trespass — you  can  not 
take  his  life  for  a  bare  trespass — and  say  the  act  is  mitigated." 

After  restating  the  proposition  that  a  man  can  not  take  life 
because  of  mere  fear  on  his  part,  or  in  order  that  he  may 
prevent  the  commission  of  a  bare  trespass,  the  court  proceeded : 
"  Now,  a  word  further  upon  the  proposition  that  I  have  al- 
read}'^  adverted  to  as  to  what  was  his  duty  at  the  time.  If 
that  danger  was  real,  coming  from  the  hands  of  Will  Jones, 
or  it  was  apparent  as  coming  from  his  hands,  and  as  affecting 
this  defendant  by  some  overt  act  at  the  time,  Avas  the  defend- 
ant called  upon  to  avoid  that  danger  by  getting  out  of  the  way 
of  it  if  he  could  ?  The  court  says  he  was.  The  court  tells 
you  that  he  was.  There  is  but  one  place  where  he  need  not 
retreat  any  further,  where  he  need  not  go  away  from  the 
danger,  and  that  is  in  his  dwelling  house.  He  may  be  upon 
his  own  premises,  and  if  a  man,  while  so  situated,  and  upon  his 
own  premises,  can  do  that  which  would  reasonably  put  aside 


BABE  BEARD  v.  UNITED  STATES. 


329 


the  danjfer  short  of  taking  life,  if  he  can  do  that,  I  say,  he  is 
called  u[)on  to  do  so  by  retreating,  by  getting  out  of  the  way 
if  he  Clin,  by  avoiding  a  conflict  that  may  be  about  to  coine 
upon  him;  and  ,the  law  says  that  he  must  do  so;  and  the  fact 
that  he  is  standing  upon  his  own  premises  away  from  his  own 
dwelling  house  does  not  take  away  from  him  the  exercise  of 
the  duty  of  avoiding  the  danger  if  he  can  with  a  due  regard 
to  his  own  safety  by  getting  away  from  there,  or  by  resorting  to 
some  otiicr  means  of  less  violence  than  those  resorted  to.  Now, 
the  rule  as  applicable  to  a  man  of  that  kind  upon  his  own 
premises — upon  his  o^vn  property,  but  outside  of  his  dwelling 
house— is  as  I  have  just  stated."  Again :  "  You  are  to  tear 
in  mind  that  the  first  proposition  of  the  law  of  self-defense 
was  tiiat  the  defendant  in  this  case  was  in  the  lawful  pursuit 
of  his  business;  that  is  to  say,  he  was  doing  what  he  had  a 
rigiit  to  do  at  the  time.  If  he  was  not,  he  deprives  himself  of 
the  right  of  self-defense,  and  no  matter  what  his  adversary 
may  do,  if  he,  by  his  own  conduct,  creates  certain  conditions 
by  his  own  wrongful  conduct,  he  can  not  take  advantage  of 
such  conditions,  created  by  his  own  wrongful  act  or  acts. 
*  *  *  Again,  going  to  the  place  where  the  person  slain  is, 
with  a  deadly  Aveapon,  for  the  purpose  of  provoking  a  diffi- 
culty or  with  the  intent  of  having  an  atfray.  Now,  if  a  man 
does  that,  he  is  in  the  wrong,  and  he  is  cut  off  from  the  right 
of  self-defense,  no  matter  what  his  adversary  may  do,  because 
t!ie  law  says  in  the  very  language  of  these  propositions  relat- 
ing to  the  law  of  self-defense  that  he  must  avoid  taking  life 
it  he  can  with  due  regard  to  his  own  safetv.  Whenever  he 
can  do  that  he  must  do  it.  Therefore,  if  he  has  an  adversjiry, 
and  lie  knows  that  there  is  a  bitter  feeling — that  there  is  a  state 
of  feeling  that  may  precipitate  a  deadly  conflict — between  him- 
self and  his  adversary,  while  he  has  a  right  to  pursue  his  usual 
daily  avocations  that  are  right  and  proper,  going  about  his 
business,  to  go  and  do  what  is  necessary  to  be  done  in  that 
way,  yet,  if  he  knows  that  condition  I  have  named  to  exist,  and 
he  goes  to  the  place  where  the  slain  person  is,  with  a  deadly 
weapon,  for  the  purpose  of  provoking  a  difficulty,  or  with  the 
intent  of  having  an  affray — if  it  comes  up,  he  is  there  to  have 
it— and  he  acts  for  that  purpose,  the  law  says  there  is  no  self- 
defense  for  him.  *  *  *  If  he  went  to  the  place  where  that 
young  man  was,  armed  with  a  deadly  weapon,  even  if  it  was 


Mil.  <••[;, 


i;i! 


% 


:!f  '  •■ 'V'h:'*5f 


330 


AMERICAN  CRIMINAL  REPORTS. 


T; 


upon  his  own  premises,  with  the  purpose  of  provoking  a  diffi- 
culty with  him,  in  which  he  might  use  that  deadly  weapon,  or 
of  having  a  deadly  affray  with  him,  it  does  not  make  any  dif- 
ference what  was  done  by  the  young  man;  there  is  no  self- 
defense  for  the  defendant.  The  law  of  self-defense  does  not 
apply  to  a  case  of  that  kind,  because  he  can  not  be  the  creator 
of  a  wrong — of  a  wrong  state  of  case — and  then  act  upon  it. 
Now,  if  either  one  of  these  conditions  exist,  I  say,  the  law  of 
self-defense  does  not  apply  in  this  case." 

Later  in  the  charge,  the  court  recurred  to  the  inquiry  as  to 
what  the  law  demanded  of  Board  before  striking  the  deceased 
with  his  gun,  and  said  :  "  If  at  the  time  of  this  killing  it  bo 
true  that  the  deceased  was  doing  an  act  of  apparent  or  real 
deadly  violence,  and  that  state  of  case  existed,  and  yet  that  tlie 
defendant  at  the  time  could  have  avoided  the  necessity  of 
taking  his  life  by  the  exercise  of  any  other  reasonable  means, 
and  he  did  not  do  that,  because  he  did  not  exercise  other  rea- 
sonable means  that  would  have  with  equal  certainty  saved  liis 
life,  but  resorted  to  this  dernier  remedy,  under  those  facts  and 
circumstances  the  law  says  he  is  guilt\'^  of  manslaughter.  Kovv, 
let  us  see  what  that  requires.  It  requires :  First,  that  the 
proof  must  show  that  Will  Jones  was  doing  an  act  of  violence 
or  about  to  do  it,  or  apparently  doing  it  or  about  to  do  it,  but 
that  it  was  an  act  that  the  defendant  could  have  escaped  from 
by  doing  something  else  other  than  taking  the  life  of  Jones,  by 
getting  out  of  the  way  of  that  danger,  as  he  was  called  upon 
to  do,  as  I  have  already  told  you,  for  he  could  not  stand  there 
as  he  could  stand  in  his  own  dwelling  house,  and  he  must  have 
reasonably  sought  to  avoid  that  danger  before  he  took  the  life 
of  Jones;  and  if  he  did  not  do  that,  if  j'ou  find  that  to  be 
Jones'  position  from  this  testimony,  and  he  could  have  done 
so,  but  did  not  do  it,  the  defendant  would  be  guilty  of  man- 
slaughter when  he  took  the  life  of  Jones,  because  in  that  kind 
of  a  case  the  law  says  that  the  conduct  of  Jones  would  be  so 
provocative  as  to  reduce  the  grade  of  crime.  Yet,  at  the  same 
time,  it  was  a  state  of  case  that  the  defendant  could  have 
avoided  without  taking  his  life,  and  because  he  did  not  do  it, 
he  is  guilty  of  the  crime  of  manslaughter." 

Further :  "  If  it  be  true  that  Will  Jones,  at  the  time  he 
was  killed,  was  exercising  deadly  violence,  or  about  to  do  so, 
or  apparently  exercising  it,  or  apparently  about  to  do  so,  and 


BABE  BEARD  v.  UNITED  STATES. 


881 


the  defendant  could  have  paralyzed  the  effect  of  that  violence 
without  taking  the  life  of  Jones,  but  he  did  not  do  it,  but 
resorted  to  this  deadly  violence,  when  he  could  have  protected 
his  own  life  without  resorting  to  that  dernier  remedy — if  that 
bo  the  state  of  the  case — the  law  says  he  is  guilty  of  man- 
slaughter, because  he  is  doing  that  which  he  had  no  right  to 
do.  This  great  law  of  self-defense  commands  him  at  all  times 
to  do  that  which  he  can  do  under  the  circumstances,  to  wit, 
exercise  reasonable  care  to  avoid  the  danger  by  getting  out  of 
the  way  of  it,  or  by  exercising  less  violence  than  that  which 
will  ])roduce  death,  and  yet  will  be  equally  effective  to  secure 
ills  own  life.  If  either  of  these  propositions  exist — and  they 
must  exist  to  the  extent  I  have  defined  to  you,  and  the  defend- 
ant took  the  life  of  Jones  under  these  circumstances,  the 
defendant  would  be  guilty  of  manslaughter." 

We  are  of  opinion  tliat  the  charge  of  the  court  to  the  jury 
was  objectionable,  in  point  of  law,  on  several  grounds. 

There  was  no  evidence  tending  to  show  that  Beard  went 
from  his  dwelling  house  to  the  orchard  fence  for  the  purpose 
of  ])rovoking  a  difficulty,  or  with  the  intent  of  having  an  alf  ruy 
with  the  Jones  brothers,  or  with  either  of  them.  On  the  con- 
trary, from  the  outset  of  the  dispute  he  evinced  a  purpose  to 
avoid  a  difficulty  or  an  affray.  He  expressed  his  willingness  to 
abide  by  the  law  in  respect  to  his  right  to  retain  the  cow  in  his 
possession.  He  warned  the  Jones  brothers,  as  he  had  a  legal 
right  to  do,  against  coming  upon  his  premises  for  the  purpose 
of  taking  the  cow  away.  They  disregarded  this  warning,  and 
determined  to  take  the. law  into  their  own  hands,  whatever 
might  be  the  consequences  of  such  a  course.  Nevertheless, 
when  Beard  came  to  where  they  were,  near  the  orchard  fence, 
he  did  nothing  to  provoke  a  difficulty,  and  prior  to  the  moment 
^vhen  lie  struck  Will  Jones  with  his  gun  he  made  no  demon- 
stration that  indicated  any  desire  whatever  on  his  part  to 
engage  in  an  affray,  or  to  have  an  angry  controversy.  He 
only  commanded  them,  as  he  had  the  legal  right  to  do,  to  leave 
his  premises.  He  neither  used,  nor  threatened  to  use,  force 
against  them. 

The  court  several  times,  in  its  charge,  raised  or  suggested  the 
inquiry  whether  Beard  was  in  the  lawful  pursuit  of  his  busi- 
ness— that  is,  doing  what  he  had  a  right  to  do — when,  after 
returning  home  in  the  afternoon,  he  went  from  his  dwelling 


1  ■ 

i;        \ 
:     !  ■           lit 

i  : 

1.1;' 
'!!S 


1,    s 


Y^yrrr 


i^ili 


if 


332 


AMERICAN  CRIMINAL  REPORTS. 


house  to  a  part  of  his  premises  near  the  orchard  fence,  just 
outside  of  which  his  wife  and  the  Jones  brothers  were  enj^iiyiMl 
in  a  dispute,  the  former  endeavoring  to  prevent  the  cow  from 
being  taken  away,  the  hitter  trying  to  drive  it  off  the  ])reinises. 
Was  he  not  doing  what  he  liad  the  legal  right  to  do,  when, 
keeping  within  his  own  premises,  and  near  his  dwelling,  he 
joined  his  wife,  who  was  in  dispute  with  others,  one  of  wliotn, 
as  he  had  been  informed,  had  already  threatened  to  take  tlie 
cow  away  or  kill  him  ?  We  have  no  hesitation  in  answering 
this  question  in  the  affirmative. 

The  court  also  said :  "  The  use  of  provoking  language,  or,  it 
seems,  resorting  to  any  other  device  in  order  to  get  another 
to  commence  an  assault  so  as  to  have  a  pretext  for  taking 
his  life,  agreeing  with  another  to  fight  him  with  a  deadly 
weapon,  either  one  of  these  cases,  if  they  exist  as  the  facts  in 
this  case,  puts  the  case  in  such  an  attitude  that  there  is  no  self- 
defense  in  it."  We  are  at  a  loss  to  understand  why  any  such 
hypothetical  cases  were  put  before  the  jury.  The  jury  must 
have  supposed  that,  in  the  opinion  of  the  court,  there  was  evi- 
dence showing  that  Beard  sought  an  opportunity  to  do  phys- 
ical harm  to  the  Jones  boys,  or  to  some  one  of  them.  There  was 
not  the  slightest  foundation  in  the  evidence  for  the  intimation 
that  Beard  had  used  provoking  language,  or  resorted  to  any 
device,  in  order  to  have  a  pretext  to  take  the  life  of  either  of 
the  brothers.  Much  less  was  there  any  reason  to  believe  that 
there  was  an  agreement  to  fight  with  deadly  weapons. 

But  the  court  below  committed  an  error  of  a  more  serious 
character  when  it  told  the  jury,  as  in  effect  it  did  by  different 
forms  of  expression,  that  if  the  accused  could  have  saved  liis 
own  life  and  avoided  the  taking  of  the  life  of  Will  Jones  In- 
retreating  from  and  getting  out  of  the  way  of  the  latter  as  lie 
advanced  upon  him,  the  law  made  it  his  duty  to  do  so;  and  if 
he  did  not,  when  it  was  in  his  power  to  do  so  without  putting 
his  own  life  or  body  in  imminent  peril,  he  was  guilty  of  man- 
slaughter. The  court  seemed  to  think,  if  the  deceased  had 
advanced  upon  the  accused  while  the  latter  was  in  his  dwell- 
ing house,  and  under  such  circumstances  as  indicated  the 
intention  of  the  former  to  take  life  or  inflict  great  bodily 
injury,  and  if,  without  retreating,  the  accused  had  taken  the 
life  of  his  assailant,  having  at  the  time  reasonable  grounds  to 
believe,  and  in  good  faith  believing,  that  his  own  life  would  be 


ti  :  ■  n 


BABE  BEARD  v.  UNITED  STATES. 


888 


tiikon,  or  great  bodily  harm  done  him  unless  ho  killed  the 
iiccusi'd,  the  case  would  have  been  one  of  justifiable  homicide. 
To  that  proposition  we  give  our  entire  assent. 

l}iit  we  can  not  agree  that  the  accused  was  under  any  greater 
obligation  when  on  his  own  |)remises,  near  his  dwelling  house, 
to  retreut  or  run  awa}'  from  his  assailant,  than  he  would  have 
been  if  attacked  within  his  dwelling  house.  The  accused  being 
wlicre  lie  had  a  right  to  bo,  on  his  own  premises,  constituting 
a  ])iirt  of  his  residence  and  home,  at  the  time  the  deceased  ap- 
proached him  in  a  threatening  manner,  and  not  having  by 
luigiiage  or  by  conduct  provoked  the  deceased  to  assault  him, 
the  question  for  the  jury  was  whether,  without  fleeing  from 
his  adversary,  he  had,  at  the  moment  he  struck  the  deceased, 
reasonable  grounds  to  believe,  and  in  good  faith  believed,  that 
he  could  not  save  his  life  or  protect  himself  from  great  bodily 
harm  except  by  doing  what  he  did,  namely,  strike  the  deceased 
with  his  gun,  and  thus  ])revent  his  further  advance  upon  him. 
Even  if  the  jury  had  been  prepared  to  answer  this  question  in 
the  affirmative — and  if  it  had  been  so  answered  the  defendant 
should  have  been  acquitted — they  were  instructed  that  the  ac- 
cused could  not  properly  be  acquitted  on  the  ground  of  self- 
defense  if  they  believed  that  by  retreating  from  his  adversary, 
by  "getting  out  of  the  way,"  he  could  have  avoided  taking 
life.    We  can  not  give  our  assent  to  this  doctrine. 

The  application  of  the  doctrine  of  "  retreating  to  the  wall" 
was  carefully  examined  by  the  Supreme  Court  of  Ohio  in 
Fnoin  V.  State,  29  Ohio  St.  18fi,  193,  199.  That  was  an  indict- 
ment for  murder,  the  defendant  being  found  guilty.  The  trial 
court  charged  the  jury  that  if  the  defendant  was  in  the  lawful 
pursuit  of  his  business  at  the  time  the  fatal  shot  was  fired,  and 
wi'.s  attacked  bv  the  deceased  under  circumstances  denoting  an 
intention  to  take  life  or  do  great  bodily  harm,  he  could  law- 
fully kill  his  assailant,  provided  he  used  all  means  "  in  his 
power"  otherwise  to  save  his  own  life  or  prevent  the  intended 
harm,  "  such  as  retreating  as  far  as  he  can,  or  disabling  his 
adversary  without  killing  him,  if  it  be  in  his  power;"  that  if 
the  attack  was  so  sudden,  fierce  and  violent  that  a  retreat 
would  not  diminish,  but  increase,  the  defendant's  danger,  ho 
might  kill  his  adversary  without  retreating;  and  further,  that 
if,  from  the  character  of  the  attack  there  was  reasonable  ground 
for  the  defendant  to  believe,  and  he  did  honestly  believe,  that 


It  ' 


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n  I  ■  ii;ii;  «i' 


; 


334 


AMERICAN  CRIMINAL  REPORTS. 


1  u-  trw:" 


1 


his  life  was  about  to  be  taken,  or  he  was  to  sufTer  great  bodily 
harm,  and  that  he  believed  honestly  that  he  would  bo  in  e(|iiul 
danger  by  retreating,  then,  if  he  took  the  life  of  the  assiiilant, 
he  was  excused.    Of  this  charge  the  accused  complained. 

Upon  a  full  review  of  the  authorities,  and  looking  to  the 
principles  of  the  common  law  as  expounded  by  writers  and 
courts  of  high  authority,  the  Supreme  Court  of  Ohio  hold  that 
the  charge  was  erroneous,  saying :  "  It  is  true  that  all  author- 
ities agree  that  the  taking  of  life  in  defense  of  one's  ]iois()n 
can  not  be  either  justified  or  excused  except  on  the  ground  of 
necessity,  and  that  such  necessity  must  be  imminent  at  the 
time;  and  they  also  agree  that  no  man  can  avail  himself  of 
such  necessity  if  he  brings  it  upon  himself.  The  question. 
then,  is  simply  this  :  Does  the  law  hold  a  man,  who  is  violently 
and  feloniously  assaulted,  responsible  for  having  brought  such 
liecessity  upon  himself  on  the  sole  ground  that  ho  failed  to  tly 
from  his  assailant  when  he  might  safelv  have  done  so  ?  The 
law,  out  of  tenderness  for  human  life  and  the  frailties  of  hu- 
man nature,  will  not  permit  the  taking  of  it  to  repel  a  more 
trespass,  or  even  to  save  life  where  the  assault  is  provoked, 
but  a  true  man,  who  is  without  fault,  is  not  obliged  to  fly 
from  an  assailant,  who  by  violence  or  surprise  maliciously 
seeks  to  take  his  life,  or  to  do  him  enormous  bodily  harm. 
Now,  undor  the  charge  below,  notwithstanding  the  defendant 
may  have  been  without  fault,  and,  so  assaulted,  with  the  ne- 
cessity of  taking  life  to  save  his  own  upon  him,  still  the  jury 
could  not  have  acquitted  if  thej'  found  he  failed  to  do  all  in 
his  power  otherwise  to  save  his  own  life,  or  prevent  the 
intended  harm,  as  retreating  as  far  as  he  could,  etc.  In  this 
case,  we  think,  the  law  was  not  correctly  stated. 

In  liunyan  v.  State,  57  Ind.  80,  83,  which  was  an  indictment 
for  murder,  and  where  the  instructions  of  the  trial  court  in- 
volved the  present  question,  the  court  said :  "  A  very  brief 
examination  of  the  American  authorities  makes  it  evident  that 
the  ancient  doctrine  as  to  the  duty  of  a  person  assailed  to  re- 
treat as  far  as  he  can  before  he  is  justified  in  repelling  force 
by  force  has  been  greatly  modified  in  this  country,  and  has 
with  us  a  much  narrower  application  than  formerly.  Indeed, 
the  tendency  of  the  American  mind  seems  to  be  very  strongly 
against  the  enforcement  of  any  rule  which  requires  a  person  to 
flee  when  assailed,  to  avoid  chastisement,  or  even  to  save 


BABE  BEARD  v.  UNITED  STATES. 


835 


human  life;  and  that  tendency  is  well  illustrated  by  the  recent 
dt'cisions  of  our  courts  bearing  on  the  general  subject  of  the 
rij,'lit  of  self-defense.  The  weight  of  modern  autiiority,  in  our 
judjfinent,  establishes  the  doctrine  that  when  a  jjcrson,  being 
without  fault,  and  in  a  place  where  he  has  a  right  to  be,  is 
violently  assaulted,  he  may,  without  retreating,  repel  force  by 
force,  and  if,  in  the  reasonable  exercise  of  his  right  of  self- 
defense,  his  assailant  is  killed,  he  is  justifiable.  *  *  *  It 
seems  to  us  that  the  real  question  in  the  case,  when  it  was 
piven  to  the  jury,  was.  whether  the  defendant,  under  all  the 
circumstances,  was  justified  in  the  use  of  a  deadly  weapon  in 
repelling  the  assault  of  the  deceased.  We  mean  by  this,  did 
the  defendant  have  reason  to  believe,  and  did  he  in  fact  believe, 
that  what  he  did  was  necessary  for  the  safety  of  his  own  life, 
or  to  ])rotect  him  from  great  bodily  harm?  On  that  question 
the  law  is  simi)le  and  easy  of  solution,  as  has  been  already 
seen  from  the  authorities  cited  above." 

In  J^ast's  Pleas  of  the  Crown,  the  author,  considering  what 
sort  of  an  attack  it  was  lawful  and  justifiable  to  resist,  even  by 
the  death  of  the  assailant,  says :  "  A  man  may  repel  force  by 
force  in  defense  of  his  person,  habitation,  or  property,  against 
one  who  manifestly  intends  and  endeavors,  by  violence  or  sur- 
prise, to  commit  a  known  felony,  such  as  murder,  rape,  rob- 
bery, arson,  burglary,  and  the  like,  upon  either.  In  these 
cases  he  is  not  obliged  to  retreat,  but  may  pursue  his  adversary 
until  he  has  secured  himself  from  all  danger;  and  if  he  kill 
him  in  so  doing  it  is  called  justifitable  self-defense;  as,  on  the 
other  hand,  the  killing  by  such  felon  of  any  person  so  law- 
fully defending  himself  will  be  murder.  But  a  bare  fear  of  any 
of  these  offenses,  however  well  grounded — as  that  another 
lies  in  wait  to  take  away  the  party's  life — unaccompanied 
with  any  overt  act  indicative  of  such  an  intention,  Avill  not 
warrant  in  killing  that  other  by  way  of  prevention.  There 
must  be  an  actual  danger  at  the  time."  Page  271.  So  in  Fes- 
ter's Crown  Cases :  "  In  the  case  of  justifiable  self-defense,  the 
injured  party  may  repel  force  with  force  in  tlefense  of  his  per- 
son, habitation,  or  property,  against  one  who  manifestly  in- 
tendeth  and  endeavoreth,  with  violence  or  surprise,  to  commit 
a  known  felony  upon  either.  In  these  cases  he  is  not  obliged 
to  retreat,  but  may  pursue  his  adversary  till  he  findeth  him- 
self out  of  danger;  and  if,  in  a  conflict  between  them,  he  hap- 


1          '         1 

'''Um 

;'-'■'■ 

:  1 

mu 

330 


AMERICAN  CItlMINAL  REPORTS. 


H 


iu 


])encth  to  kill,  such  killint^  is  justifiable,"  Chiiptor  3,  p.  ')73. 
In  liisli(>])\s  ('riininal  Law,  the  author,  afler  ohserviuj;-  that 
cas(vs  of  more  assault  and  of  mutual  quarrel,  where  theattiu-k- 
in^  pjii'ty  has  not  the  purpose  of  murder  in  his  heart,  are 
those  to  which  is  applied  the  doctrine  of  the  books  that  one 
can  not  justify  the  killin<r  of  another,  thou*rh  ap|)arently  in 
self-<lef(!nse,  unless  he  retreat  to  the  wall  or  other  interposing 
ol)stacle  before  resortinf^  to  this  extreme  ri<j;ht,  says  that 
"  Where  an  attack  is  nuule  with  murderous  intent,  th(!ie  hcinir 
sulllcient  overt  act,  the  person  attacked  is  under  no  duty  to 
fiy.  lie  may  stand  his  t,''round,  and,  if  need  be,  kill  his  adver- 
sary. And  it  is  the  same  where  the  attack  is  with  a  deiidiv 
weapon,  for  in  this  case  a  jierson  attacked  may  well  assume 
that  th(!  other  intends  murder,  whether  he  does  in  fact  or  not." 
Volume  1,^850.  The  rule  is  thus  expros.sed  by  Wharton: 
'' A  man  may  repel  force  by  force  in  defense  of  his  jxmsoii, 
habitation,  or  property,  a<i,ainst  any  one  or  many  who  mani- 
festly intend  and  endeavor  to  commit  a  known  felony  by  vio- 
lence or  surprise,  or  either.  In  su..'h  case  he  is  not  compelled 
to  retreat,  but  may  pursue  I'is  adv(!r.sary  until  he  finds  himself 
out  r)f  <lan<^er;  and  if,  m  the  conflict  between  them  he  happcuis 
to  kill  him,  .such  killing  is  justifia!)le."  2  Whart.  Ci:  Law, 
§  lOllK 

Se(;,  also  0\iHo«/fier  v.  Sttite,  3  Minn.  270, 273  ((iil.  185);  J\>„<l 
V.  J*<'oj>/>',  S  Mich.  !;•)(),  177;  State  v.  Dixon,  7r)  N.  (.\  275,  27'.>; 
State  IK  SlH'nimn,  1(5  U.  I.  (531,  IS  Atl.  1(»4(>;  Flcldx  v.  State 
(Ind.  Sup.),  32  N.  K.  780;  Keet-mle  v.  Com.  (Ky.),  2(5  S.  W.  Si 7; 
IfayiK'n  i\  State,  17  (ia.  4(1.'),  4S3;  Lomj  v.  State,  52  Miss.  23,35; 
State  V.  Ta'eet]ij,b  Iowa  433;  Baker  v.  Corn.  (Ky.),  10  S.  W. 
975;  T!)H/fe  v.  Coin.  (Ky.),  11  S.  W.  812;  3  liice,  Ev.,  §  3(10. 

In  our  opini<m,  the  court  below  erred  in  holding  that  the 
accuse<l.  while  on  his  [)remises,  outside  of  his  dwellin<^  li<ms(», 
was  under  a  legal  duty  to  get  out  of  the  way,  if  he  c«>nl(l,  of 
his  assailant,  who,  according  to  one  vi«>w  of  the  evidence,  had 
threatentid  to  kill  the  defendant,  in  exeiMition  of  that  ])urp(tse 
had  arnu'd  himself  with  a  deadly  weapon,  with  that  weapon 
concealed  upon  his  person  W(!nt  to  the  (hibindant's  preniis<'s, 
despite  the  warning  of  the  latter  to  keep  away,  and  bv  word 
and  act  indicated  his  purpose  to  attack  the  Jtccused.  The  de- 
fendant was  where  he  had  the  right  to  be,  wl«en  the  decreased 
advanced   upon  him   in  a  threatening  manner,  and  with   a 


Ml 


BABE  BEARD  v.  UNITED  STATES. 


837 


iltwUy  weapon;  and  if  the  accused  did  not  provoke  the  assault, 
and  liiid  at  the  time  reasonable  grounds  to  believe,  and  in 
(rood  t'iiiLli  believed,  tbat  the  deceased  intended  to  take  his  life, 
or  do  liim  great  bodily  harm,  ho  was  not  obliged  to  retreat, 
nor  to  consider  whether  ho  could  safely  retreat,  but  was  enti- 
tled to  slaiul  his  ground,  and  meet  any  attack  made  upon  him 
with  a  (Kadly  weapon,  in  such  way  and  with  such  foi'ce  as,  under 
all  tlu!  circumstances,  ho,  at  the  moment,  honestly  believed, 
and  had  reasonable  grounds  to  believe,  were  necessary  to  save 
his  own  life,  or  to  j)rotect  himself  from  great  bodily  injury. 

As  the  ])roceeilings  below  were  not  conducted  in  accordance 
with  these  jH'incijdes,  the  judgment  must  be  revtu-sed  and  the 
ciuse  remanded,  with  directions  to  grant  a  new  trial. 

Other  objections  to  the  charge  of  the  court  are  raised  by 
tlio  assignments  of  error,  but,  as  the  (piestions  which  tliey 
present  may  not  arise  upon  another  trial,  they  will  nut  be  now 
examined.    J  udgment  reversed. 

Note.— />H^/  to  rt/rcftf.—Tlio  weight  of  authority  now  is,  that  when  a 
|H>i-s(iii  litiuK  without  fault  in  a  plat^u  whore  ho  liim  a  right  to  he,  is  violently 
iisHaiit'fl,  111!  may,  without  retr«'atiiiR,  rej)el  force  hy  force,  and  if  in  tho 
rctutoiiahle  exi-rcise  of  Iuh  right  of  Hcif-ilefense,  he  killn  his  assailant,  he  ia 
justiliahie.  Jiiinijiiu  v.  State,  57  liul.  8(1;  2  Am.  Cr.  liei»,  818;  2  VVIiurt.  Cr. 
Law,  S;  l(ll!1;  Encin  v.  State,  2  Aiu.  Cr.  Uep.  251, 

S(7/-(/('/('«,sr'.— Where  <h'fendant  waa  one  of  the  aMsailed  parties  who  wpr«' 
nut  the  aggressors,  hut  ntootl  upon  tlie  deft'nsive,  lie  is  autliori/.ed  to  (tei'end 
hi';  !<sHO('iates  agaiuHt  a  (htadly  aasault,  under  well  grouiided  apprehension 
tliut  their  lives  are  in  danger,  oven  to  tho  extent  of  taking  tin-  lives  of  tho 
iissailanls.  In  such  a  ('usi>,  th(«  doctrinoH  of  the  right  of  self-defense  are  not 
(lilTereiil  from  those  authorizing  the  defonso  of  one'H  own  person.  iS7(j/t'  r. 
Wextfiill,  li>  la.  !12H; ;)  Am.  Cr.  Uep.  !M;i;  2  Whart.  Cr.  Law,  J^;^  »M,  lOU). 

Ui'Urf  inrissary  to  justify  taking  life  af  assail' int. — If  a  person  assaulted 
in  such  a  maimer  and  uii<ler  such  circumstances  lui  to  induce  in  him  a  rca- 
SDiialiie  and  well-grounded  heli(>f  that  ho  iH  actually  in  dang(>r  of  louing 
his  life  or  sulfering  great  hodily  harm,  acts  under  such  helief,  ho  will  ho 
jimlified  in  tlefeiiding  himself  wh(>ther  tho  danger  iu  real  or  only  apparent. 
Pauton  V.  The  reople,  114  III.  5<)5;  5  Am.  Cr.  Hop.  425;  iVo/i/*;  v.  Ilynd- 
maii,  W)  Cal.  1.  For  a  clear  and  full  ox|)ositiou  of  the  doctrine  of  Bolf- 
tli'funso,  800  5  Am.  Cr.  Hop.,  note  pp.  427-437. 


!ii! 


''II 


;      ''IPfviW 


338  AMERICAN  CRIMINAL  EEPORTS. 

Bannon  and  Mdlkey  v.  United  States. 
(150  U.  S.  464.) 

Indictment:  Statutory  offense—Conspiracy— Felony— Aver  inert  of  otiert 

act. 

1.  A  conspiracy  to  commit  an  offense  against  the  United  States  is  not  a 

felony  at  common  law;  and  if  made  a  felony  by  statute,  an  indictment 
for  a  conspiracy  is  not  defective  by  reason  of  failing  to  aver  that  it  was 
feloniously  entered  into. 

2.  In  an  iiidictment  for  a  conspiracy  under  Rev.  Stat..  ^  5440,  the  fact  of 

conspiring  must  be  charged  against  all  the  conspirators,  but  tlie  doing 
of  overt  acta  in  furtherance  of  the  conspiracy  may  be  charged  ouly 
againstthose  who  committed  them. 

3.  It  is  unnecessary  to  consider  in  detail  errors  which  do  not  iippear  in  the 

bill  of  exceptions,  or  which  do  not  appear  to  have  been  exueptcd  to  on 
the  trial,  or  which  seem  to  have  been  quite  immaterial,  so  far  as  ex- 
cepted to. 

4.  This  was  a  writ  of  eiTor  to  review  a  conviction  of  the  plaintiffs  in  error, 

who  were  jointly  indicted  with  twenty-five  others  for  conspiracy  "  to 
commit  an  offense  against  the  United  States"  in  aiding  and  abcttinjj; 
the  landing  in  the  United  States  of  Chinese  laborere  in  violation  of  the 
exclusion  act,  by  furnishing  such  lalwrers  false,  fraudulent  and  pre- 
tended evidences  of  identification,  and  by  counseling,  advising  and 
directing  said  lalwrers,  and  furnishing  them  informati<jn  and  adviie 
touching  the  questions  liable  to  be  asked  them  ujMjn  their  application 
for  permission  to  land,  and  by  various  other  means  to  t'  '  grand  jury 
unknown.  Tlie  times,  jdaces,  manner  and  meiuis  of  such  conspirai-y 
are  set  forth  in  the  indictment. 

5.  Most  of  the  defendants  were  arrested  on  the  day  the  indictment  was 

filed,  and  demurred  to  the  same  for  failing  to  set  forth  facts  sutlicient 
to  constitute  an  offense  against  the  laws  of  the  Uniteil  States.  The 
denmrrer  being  overruled,  the  trial  proceeded  against  twenty  of  the 
defendilnts,  and  was  concluded  by  a  verdict  finding  the  plaiiitilTs  in 
error,  together  with  one  Dunbar,  guilty  as  charged  in  the  indictment. 
The  others  were  acquitted,  except  two,  as  to  whom  the  jury  were  un- 
able to  agree.  The  usual  motions  for  a  new  trial  having  been  nuidc  luul 
overrulecl,  plaintiff  in  error  Mulkey  was  senti'iiced  to  pay  a  line  of 
|S,000,  and  to  be  imprisoned  for  one  year,  and  Haimon  was  also  sen- 
tenced to  imprisonment  for  six  montlis.  Whereupon  they  sued  out  this 
writ  of  error. 


Error  to  the  District  Court  of  tlie  United  States  for  the  Dis- 
trict of  Oregon. 

J/>\  A.  B.  Browne  (with  whom   was  Mr.  A.  T.  Bvltton  on 
the  brief),  for  plaintiff  in  error  Mullcey. 


BANNON  AND  MULKEY  v.  UNITED  STATES. 


'-"• "  fi 


3[r.  B.  F.  Dowell,  for  plaintiff  in  error  Bannon. 

Mr.  Assistant  Attorneij-General  Conrad,  for  defendants  in 

error. 

J\Ir.  Justice  Brown,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

This  case  is  before  us  upon  certain  assignments  of  error,  the 
prip'-'l'iil  ones  of  which  relate  to  the  sufficiency  of  the  indict- 
ment. 

1.  Tiie  indictment  is  claimed  to  be  fatally  defective,  in  that 
it  fails  to  allege  that  the  d(^fendants  "  feloniously  "  conspired 
to  commit  the  offense  in  question.  The  language  of  the  in- 
liicu.  ent  in  this  particular  is  as  follows :  That  the  defendant 
did,  "  with  divers  other  evil-disposed  persons,  to  the  grand 
jury  unknown,  unlawfully,  willfully,  knowingly,  and  mali- 
ciously conspire,  combine,  and  confederate  together,  and  with 
each  other,  to  willfully,  knowingly,  unlawfully  and  maliciously 
commit  an  offense  against  the  United  States,  to  wit,  the  offense 
iind  misdemeanor  of  knowingly  and  unlawfully  aiding  and 
iihetting  the  landing  in  the  United  States,  and  in  the  State  of 
Oregon,  and  in  the  District  of  Oregon,  and  within  the  juris- 
diction of  this  court,  from  a  vessel,  to  wit,  the  steamship  Wil- 
mington and  the  steamship  Ilaytian  Republic,  both  steamships 
plying  between  the  port  of  Portland,  Oregon,  and  Vancouver, 
in  the  province  of  British  Columbia,  Dominion  of  Canada,  Chi- 
nese persons,  to  wit,  Chinese  laborers  not  lawfully  entitled  to 
enter  the  United  States,  by  furnishing  such  Chinese  laborers 
false,  fraudulent,  and  ])retended  evidences  of  iilentification,  and 
hy  counseling,  advising  and  directing  said  Chinese  laborers 
and  furnishing  them  information  and  advice  touching  the  ques- 
tions liable  to  be  aske<l  them  upon  their  application  ft)r  ])er- 
mission  to  land  from  said  vessels,  and  by  various  other  means 
to  tiie  grand  jury  unknown."  Following  this  is  a  specillcation 
of  certain  acts  done  by  several  of  the  conspirators,  including 
Bannon,  but  not  including  Mulkey. 

The  statute  alleged  to  have  been  violated  is  Rev.  St.,  ^  .'^440, 
as  amended  by  the  act  of  May  17,  1S7V>  (21  Stat.  4) :  "  If  two 
or  more  persons  conspire  either  to  commit  any  offense  against 
the  United  States  or  to  defraud  the  Unite<l  States  in  any  man- 
ner or  for  any  ])urpos0,  and  one  or  more  of  such  parti<;s  do 
any  act  to  effect  the  object  of  the  conspiracy,  all  the  i)arties 


"f 


ill 


ii 


m 


§5 


'm 


340 


AMERICAN  CRIMINAL  REPORTS. 


to  such  conspiracy  shall  be  liable  to  a  penalty  of  not  more  than 
810,000,  or  to  imprisonment  for  not  more  than  two  years,  or  to 
both  fine  and  imprisonment,  in  the  discretion  of  the  court."' 
Defendant's  argument  in  this  connection  is  that  inasmuch  as 
this  court  held  in  Machin  v.  U.  S.,  117  U.  S.  348,  that  a  criiuo 
punishable  by  imprisonment  in  the  sta*;e  prison  or  penitentiary, 
with  or  without  hard  labor,  is  an  infai  lous  crime  as  known  to 
the  federal  constitution,  it  necessarily  follows  that  such  an 
offense  is  a  felony,  and  hence  that  the  indictment  is  defective 
in  failing  to  aver  that  the  conspiracy  was  feloniously  entered 
into. 

That  a  conspiracy  "  to  commit  any  offense  against  the  United 
States"  is  not  a  felonv  at  common  law  is  too  clear  for  urgu- 
ment;  and  even  if  it  were  made  a  felony  by  statute,  the  indict- 
ment would  not  necessarily  be  defective  for  failing  to  aver  that 
the  act  was  feloniously  done.  This  was  the  distinct  ruling'  of 
this  court  in  U.  S.  v.  Staats,  8  How.  41,  wherein,  under  an  act 
of  congress  declaring  that  if  any  person  should  transmit  to 
any  officer  of  the  government,  any  writing  in  support  of  any 
claim,  with  intent  to  defraud  the  United  States,  knowing  the 
same  to  be  forged,  such  person  should  be  adjudged  guilty  ot 
felony,  it  was  held  to  be  sufficient  that  the  indictment  cliurged 
the  act  to  have  been  done  "  with  intent  to  defraud  the  United 
States,"  without  also  charging  that  it  was  done  feloniously,  or 
with  a  felonious  intent.  In  the  opinion  it  Avas  admitted  that 
in  cases  of  felonies  at  common  law,  and  some  also  by  statute, 
the  felonious  intent  was  deemed  an  essential  ingredient,  and 
the  indictment  would  be  defective,  even  after  verdict,  unless 
such  intent  was  averred;  but  it  was  held  that  under  the  stat- 
ute in  question  the  felonious  intent  was  no  part  of  the  descrij)- 
tion,  as  the  offense  was  complete  without  it,  and  that  the  fel- 
ony was  only  a  conclusion  of  law,  from  the  acts  done  with  the 
intent  described,  and  hence  was  not  necessary  to  be  charged 
in  the  indictment.  Where  the  offense  is  created  by  statute, 
and  the  statute  does  not  use  the  word  "  feloniously,"  there  is 
a  difference  of  opinion  among  state  courts  whether  the  word 
must  be  put  into  the  indictment.  1  Eish.  Cr.  Proc.,  §  535. 
But,  under  the  decision  in  the  Staats  case,  we  are  clearly  of 
the  opinion  that  it  need  not  be  done. 

Neither  does  it  necessarily  follow  that  because  the  punisli- 
ment  affixed  to  an  offense  is  infamous,  the  offense  itself  is 


BANNON  AND  MULKEY  v.  UNITED  STATES. 


341 


urgu- 


thereby  raised  to  the  grade  of  felony.  The  word  "  felony  " 
was  used  at  common  law  to  denote  offenses  which  occasioned 
a  forfeiture  of  the  lands  or  goods  of  the  offender,  to  which 
capital  or  other  punishment  might  be  superadded,  according 
to  the  degree  of  guilt.  4  Bl.  Comm.  94,  95;  1  Kuss.  Crimes, 
42.  Certainly  there  is  no  intimation  to  the  contrary  in  Mack- 
in's  case,  which  was  put  wholly  upon  the  ground  that  at  the 
present  day,  imprisonment  in  a  state  prison  or  penitentiary, 
with  or  without  hard  labor,  is  considered  an  infamous  punish- 
ment. If  such  impiisonment  were  made  the  solo  tost  of  fel- 
onies, it  would  necessarily  follow  that  a  great  many  offenses 
of  minor  importance,  such  as  selling  distilled  liquors  without 
payment  of  the  special  tax,  and  other  analogous  offenses  under 
the  internal  and  customs  revenue  laws,  would  be  treated  as 
felonies,  and  the  persons  guilty  of  such  offenses  stigmatized  as 
felons.  The  cases  of  Wilson  (114  U.  S.  417)  and  Ikfackin  (117 
U.  S.  348),  prescribed  no  new  definition  for  the  word  "  felony," 
but  secured  persons  accused  of  offenses  punishable  by  impris- 
onment in  the  penitentiary  against  prosecution  by  information, 
and  without  a  preliminary  investigation  of  their  cases  by  a 
grand  jury.  By  statute  in  some  of  the  states,  the  word  "fel- 
ony "  is  defined  to  mean  offenses  for  which  the  offender,  on 
conviction,  may  be  punished  by  death  or  imprisonment  in  the 
state  prison  or  penitentiary;  but,  in  the  absence  of  such  stat- 
ute, the  word  is  used  to  designate  such  serious  offenses  us  were 
formerly  punishable  by  death  or  by  forfeiture  of  the  lands  or 
goods  of  the  offender.     Ev  parte  Wilson,  114  U.  S.  417,  423. 

2.  The  indictment  is  also  claimed  to  be  defective  as  to 
Mulkey,  in  failing  to  aver  that  he  committed  any  act  which 
connected  him  with  the  alleged  conspiracy.  The  indictment, 
after  alleging  the  conspiracy,  sets  forth  various  acts  performed 
by  several  of  the  defendants  in  furtherance  thereof,  such  ;is 
executing  false  certificates  of  identification,  procuring  signa- 
tures of  witnesses  thereto,  and  delivering  the  same  with  intent 
that  they  be  taken  to  China  and  used  there;  but  there  is  no 
averment  of  any  act  done  by  Mulkey,  either  connected  with 
or  in  pursuance  of  the  general  design.  The  ol»jection  is  clearly 
untenable.  By  the  express  terms  of  section  5440,  "  If  two  or 
more  persons  conspire  *  *  *  and  one  or  more  of  such 
parties  do  any  act  to  effect  the  object  of  the  conspiracy,  all 


■!! 


'    ^k*,';!^ 


in 


342 


AMERICAN  CRIMINAL  REPORTS. 


the  parties  to  such  conspiracy  shall  bo  liable."  Nothing  can 
be  ])lainer  than  this  language. 

At  common  law  it  was  neither  necessary  to  aver  nor  prove 
an  overt  act  in  furtherance  of  the  conspiracy,  and  indictments 
therefor  were  of  such  general  description  that  it  was  custom- 
ary to  require  the  prosecutor  to  furnish  the  defendant  with  a 
parti<  iilar  of  his  charges.  Jicx  v.  Gill,  2  Barn.  &  Aid.  204; 
R(x  V.  HamUton,  7  Car.  &  P.  448;  U.  S.  v.  Walsh,  5  Dill.  .58; 
Fed.  Cas.  No.  16,036.  But  this  general  form  of  indictnicMit 
has  not  met  with  the  approval  of  the  courts  in  this  countiy, 
and  in  most  of  the  states  an  overt  act  must  bo  alleged.  The 
statute  in  question  changes  the  common  law  only  in  requir- 
ing an  overt  act  to  be  alleged  and  proved.  The  gist  of  tlie 
offense  is  still  the  unlawful  combination,  which  must  be  proven 
against  all  the  members  of  the  conspiracy,  each  one  of  Avliom 
is  then  held  responsible  for  the  acts  of  all.  American  Fur 
Co.  V.  U.  S.,  2  Pet.  358;  NwM  v.  Burrows,  91  U.  S.  426,  4?,S. 
It  was  said  by  Mr.  Justice  Woods  in  U.  S.  v.  Brittort,  108  U. 
S.  lOl*,  204,  that  "  the  provision  of  the  statute  that  there  must 
be  an  act  done  to  effect  the  object  of  the  conspiracy,  merely 
affords  a  locits  pwmf.entiw,  so  tliat  before  the  act  done,  either 
one  or  all  the  ])arties  ma}'^  abandon  their  design,  and  thus  avoid 
the  penalty  prescribed  by  the  statute."  If  such  were  not  the 
law,  indictments  for  conspiracy  would  stand  upon  a  diffenMit 
footing  from  any  others,  as  it  is  a  general  i)rinciple  that  a  party 
can  not  be  punished  for  an  evil  design,  unless  he  has  taken 
some  steps  toward  carrying  it  out.  It  has  always  been,  how- 
ever, and  is  still,  the  law,  that  after  prima /a  cie  evidence  of  an 
unlawful  combination  has  been  introduced,  the  act  of  any  one 
of  the  co-conspirators  in  furtherance  of  such  combination  may 
be  properly  given  in  evidence  against  all.  To  require  an  overt 
act  to  be  proven  against  every  member  of  the  conspiracy,  or  a 
distinct  act  connecting  him  with  the  combination  to  bo  alleged, 
would  not  onh'  be  an  innovation  upon  established  principles, 
but  would  render  most  prosecutions  for  the  offense  nugatory. 
It  is  never  necessary  to  set  forth  matters  of  evidence  in  an 
indictment.     Foans  v.  U.  S.,  153  U.  S.  584,  594. 

Our  attention  is  called,  in  the  brief  of  Bannon's  counsel,  to 
certain  alleged  errors  in  the  admission  of  testimony,  as  well  as 
in  the  charge  of  the  court;   but  as   these  errors  either  do  nut 


STATE  V,  FITZSIMON. 


3i3 


apjiear  in  the  bill  of  exceptions  at  all,  or  do  not  appear  to 
have  boen  excepted  to  upon  the  trial,  or  seem  to  have  been 
immaterial,  so  far  as  they  were  excepted  to,  it  is  unnecessary 
to  consider  thera  in  detail. 
The  judgment  of  the  court  below  is  therefore  affirmed. 


mi 


■'■V 


il; 


State  v.  Fitzsimon. 

(18  R.  I.  230.) 

Indictment:    Joinder  of  counts— Burglary— Assault  with  intent  to  rape. 

1.  Theoff«!naes  of  burglary  and  an  assault  with  intent  to  commit  rape  are 

not  fo^nate  offenses,  which  may  be  joined  in  different  counts  of  the 
snnie  iiidictment. 

2.  On  a  prosecution  for  assault  with  intent  to  rape,  while  the  character  of 

the  prosecutrix  for  chastity  may  be  attacked,  specific  acts  of  improper 
conduct  with  other  men  can  not  be  shown. 

3.  On  a  prosecution  for  burglary,  the  fact  that   defendant  entered  the 

house  at  two  different  times  on  the  same  night  will  not  necessitate  an 
election  by  the  state  as  to  which  entry  it  will  go  to  the  jury  on,  where 
both  entries  were  made  for  the  same  purpose,  and  defendant  was 
frightened  away  the  first  time. 

Albert  Fitzsimon  was  indicted  and  convicted  for  burglary 
and  petitions  for  new  trial.    Granted. 

George  J.  West  and  Patrick  J.  McCarthy,  for  petitioner. 
Robert  W.  Burhank,  Atty.  Gen.,  for  the  State. 

TiLMNOFiAST,  J.  Ouc  of  the  principal  reasons  urg-od  by  the 
defendant  in  supjiort  of  his  petition  for  a  now  trial  is  the 
joinder  in  the  indictment  of  a  count  for  assault  with  intent  to 
commit  rape  with  a  count  for  burglary,  whereby  he  alleges 
that  ho  was  emlmrrassed  and  pTv>judiced  in  his  trial,  the  court 
below  refusing  to  com]iol  the  attorney-general  to  elect  upon 
wiiich  of  said  counts  ho  would  go  to  the  jury.  At  the  common 
law  tiie  general  rule  of  practice  was  to  allow  several  felonies, 
or  several  misdemeanors,  to  be  charged  in  several  counts  of  the 
same  indictment,  but  not  to  allow  the  joinder  of  a  felony  with  a 
misdemeanor.  2  Hale,  P.  C.  173;  King  v.  Fuller,  1  Bos.  &  P. 
180;  Hex  V.  Benfield,  2  Burrows,  080;  1  Chit.  Crim.  Law,  208, 


■m 


% 


ifl! 


■tl-  1 


844 


AMERICAN   CRIMINAL  REPORTS. 


209;  Storrs  v.  State,  3  Mo.  9;  Scott's  Case,  14  Grat.  CS7,  004; 
Harman  v.  Com.,  12  Serg.  &  R.  69,  70.  Nor  could  tliere  lie  a 
conviction  of  a  misdemeanor  on  an  indictment  chargino-  a 
felony.  Rex  v.  Cross,  1  Ld.  Eayra.  711;  2  Hawk,  P.  C,  c.  47, 
§  0.  The  reason  for  this  rule,  as  stated  by  Paxson,  J.,  in 
Hunter  v.  Com.,  79  Pa.  St.  503,  505,  "  was  that  persons  in- 
dicted for  misdemeanors  were  entitled  to  certain  advantages 
at  the  trial,  such  as  the  right  to  make  a  full  defense  by  coun- 
sel, to  have  a  copy  of  the  indictment,  and  a  special  jury — privi- 
leges not  accorded  to  those  indicted  for  a  felony.  See,  also, 
State  V.  Smalley,  50  Vt.  736,  749.  By  the  passage  of  the  stat- 
ute, 7  Wm.  IV.,  and  1  Vict.,  c.  85,  §  11,  known  as"  Lord  Den- 
man's  Act,"  however,  which  makes  it  lawful  for  the  jury,  in 
case  of  felonies  committed  against  the  person,  to  acquit  the 
defendant  of  the  felony,  and  find  him  guilty  of  a  constituent 
misdemeanor,  said  rule  was  practically  abrogated,  and  it  is  to 
be  presumed,  therefore,  that  the  reason  on  which  it  was  basetl 
no  longer  exists.  See  Reg.  v.  Berg,  2  Denison,  Cr.  Cas.,  99. 
Later  English  statutes  and  decisions  have  still  further  mali- 
fied  the  rigor  of  the  common  law  in  regard  to  the  matter  now 
under  consideration.  See  Steph.  Dig.  Crim.  Law,  pp.  178-181; 
Ferguson's  Case,  Dears.  Cr.  Cas.,  427.  The  common  law  rule 
first  above  referred  to,  that  a  felony  and  a  misdemeanor  should 
not  be  joined  in  the  same  indictment,  was  based  upon  substan- 
tially the  same  reasons  as  the  rule  which  prohibited  the  con- 
viction for  a  misdemeanor  under  an  indictment  for  felony. 

It  can  not  be  contended,  however,  that  the  reason  of  said  rule, 
even  if  it  were  still  in  force  in  England,  has  any  application 
in  those  states  where,  like  our  own,  the  defendant  in  any 
indictment  whatsoever  is  not  only  entitled  to  the  assist- 
ance of  counsel,  who  are  furnished  and  paid  by  the  state 
if  he  is  too  poor  to  furnish  his  own,  but  where  he  may  testify 
in  his  own  behalf,  call  witnesses  at  the  expense  of  the  state,  if 
need  be,  and  have  every  privilege  and  facility  possible  for 
making  a  full  and  complete  defense.  Indeed  as  said  in 
Hunter  v.  Com.,  supra,  "  By  the  merciful  provisions  of  our 
criminal  law,  the  higher  and  more  atrocious  the  crime,  the 
more  numerous  are  the  safeguards  thrown  around  the  accused, 
and  the  more  jealously  does  the  law  guard  every  legal  right 
to  which  he  is  entitled."  The  practice  has  always  been  in 
this  state,  on  an  indictment  for  felony,  to  allow  the  jury  to 


I' I 


7,  (394; 
re  be  a 
•ffing  a 

.  c.  47, 
J.,  in 
ons  in- 
mtagos 


STATE  V.  FITZSIMON. 


345 


convict  of  any  lesser  offense  included  therein  (see  Pub.  St.  II. 
I.,  c.  248,  §  23,')  and  also  to  allow  of  the  joinder  of  a  count  for 
misdemeanor  with  a  count  for  felony,  where  the  offenses  are 
cognate,  such  as  larceny  and  the  receiving  of  stolen  goods, 
and  rape,  and  an  assault  with  intent  to  commit  rape.  State  v. 
Ilazanl,  2  R.  I.  474.  And  whether,  in  case  of  such  joinder, 
the  attorney-general  shall  be  compelled  to  elect  upc^n  which 
count  he  will  ask  for  a  conviction,  rests  in  the  discretion  of  the 
trial  court.  Whart.  Crim.  PI.  (9th  Ed.),  §§  294-290,  and  cases 
cited;  State  v.  Maloney,  12  R.  I.  251;  State  v.  Bell,  27  Md.  675, 
G77;  Wall  v.  State,  51  Ind.  453,  454.  An  examination  of  the 
decisions  in  other  states  upon  the  question  of  the  joinder  of 
counts  for  felony  and  misdemeanor  in  the  same  indictment, 
shows  that  while  they  are  by  no  means  uniform,  yet  that  such 
practice  is  generally  allowable  in  all  cases,  ''  except  where 
the  offenses  charged  are  repugnant  in  their  nature  and  legal 
incidents,  and  the  trial  and  judgment  so  incongruous  as  to 
deprive  the  defendant  of  some  legal  advantage."  Ilemcoocl  v. 
Com.,  52  Pa.  St.  424.  In  other  words,  the  general  rule  is  that 
felonies  and  misdemeanors  forming  part  of  the  development  of 
the  same  transaction  may  be  joined  in  the  same  indictment. 
Wluirt.  Crim.  PI.,  §§  285-294,  and  cases  cited;  Hannan  v. 
dm.,  12  Serg.  &  R.  69;  Cotn.  v.  MoLauyhlin,  12  Cush.  612;  10 
Amer.  &  Eng.  Enc.  Law,  599c,  and  cases  cited  in  note  4;  State 
V.  Lincoln,  49  N.  H.  404;  Stevens  v.  State,  m  Md.  202,  7  Atl. 
Eep.  254;  Stacger  v.  Com.,  103  Pa.  St.  469,  472.  In  Cawley  v. 
State,S7  Ala.  152,  153,  "Walker,  C.  J.,  says:  "After  an  elabo- 
rate and  careful  review  of  the  authorities  we  feel  safe  in 
announcing  the  conclusion  that  two  offenses  committed  by 
the  same  person  may  be  included  in  the  same  indictmen  t 
where  they  are  of  the  same  general  nature,  and  belong  to  the 
same  family  of  crimes,  and  where  the  mode  of  trial  and  nature 
of  punishment  are  also  the  same. 
The  first  question  which  arises  in  the  case  at  bar  then,  is  this : 

'  As  follows:  "Section.  23.  Whenever  an  indictment  shall  be  found 
against  any  person  for  any  offense,  and  the  petit  jury  shall  not  be  satisfied 
tliat  he  is  guilty  of  the  whole  offense,  but  shall  be  satisfied  that  he  is 
guilty  of  so  much  thereof  as  shall  substantially  amount  to  an  offense  of  a 
lower  nature,  the  jury  may  find  him  guilty  of  such  lower  offense;  and  the 
court  shall  proceed  to  sentence  such  convict  for  the  offense  of  which  he 
shall  be  so  found  guilty,  notwithstanding  that  such  court  had  not  other- 
wise jurisdiction  of  such  offense." 


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AMERICAN  CRIMINAL  REPORTS. 


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Are  the  offenses  of  burglary  and  an  assault  with  intent  to  com- 
mit  rape  cognate  offenses  ?  We  do  not  think  they  are.  I'ni'iv- 
lary  is  the  breaking  and  entering  the  dwelling  house  of  another 
in  the  night  time  with  intent  to  commit  a  felony  therein, 
whetiier  the  felonious  intent  be  executed  or  not  (Russ.  Crimes, 
[0th  Amer.  Ed.]  7S0;  4  Bl.  Comm.  227),  while  an  assault  with 
intent  to  commit  rape  is  merely  a  statutory  misdemeanor, 
entirely  distinct  from,  and  having  no  necessary  connection  with 
the  first  named  crime.  Nor  are  said  offenses  so  related  that 
the  greater  necessarily  includes  the  less,  as  is  the  case  in  mur- 
der, which  includes  manslaughter,  and  in  rape,  which  incluiles 
an  assault  with  intent  to  commit  rai)e.  Com.  v.  Thnmpsnn^  116 
Mass.  346.  Moreover,  our  statutes  recognize  a  mai'ked  distinc- 
tion between  burglary  and  assault  with  intent  to  commit  rajw, 
by  classing  the  former  with  "offenses  against  private  prop 
erty,"  and  the  latter  with  "  offenses  against  the  person."  Tub. 
St.  R.  I.,  cc.  240,  242.  Wo  have  been  referred  to  no  case  in 
which  such  a  joinder  as  the  one  now  before  us  has  ever  been 
allowed,  and  a  somewhat  thorough  examination  of  theautlior- 
ities  satisfies  us  that  none  can  be  found.  For  a  full  discussion 
of  the  general  question  involved,  see  Archb.  Crim.  PI.  &  Pr. 
(8th  Ed.),  21)2-300,  and  cases  cited;  Gilbert  v.  State,  65  Ga.  440; 
State  V.  IlooJter,  17  Vt.  658;  Hex  v.  Galloway,  1  ]\[oody,  Cr. 
Cas.,  234;  Yoimg  v.  King,  3  Term  R.  98;  People  v.  Tweed,  5 
Hun  353;  State  v.  Boise,  1  McMul.  ISO;  Kane  v.  People,  8 
Wend.  203;  Cook  v.  State,  24  N.  J.  Law  843;  Com.  v.  Po/wt-f;/, 
10  Cush.  52;  Crowletj  v.  Com.,  11  Mete.  (Mass.)  575,  570;  Cainj)- 
hell  V.  People,  109  111.  565;  Stevick  v.  Com.,  78  Pa.  St.  460, 463; 
1  Bish.  Crim.  Proc,  §§  199-213,  and  cases  cited. 

We  are  aware  that  the  case  is  not  before  us  on  a  motion  in 
arrest  of  judgment,  although  it  appears  from  the  record  that 
such  a  motion  was  made  in  the  court  below,  and  overruled,  and 
that  exception  was  duly  taken  to  said  ruling.  We  think,  how- 
ever, that  under  the  broad  provisions  of  our  statute  relating  to 
new  trials  (see  Pub.  St.  R.  I.,  c.  221,  §  2),  the  defendant  may  be 
permitted  to  take  advantage  of  such  incongruous  charges  as 
those  contained  in  this  indictment  on  a  petition  like  this,  for  it 
can  hardly  be  said  that  a  party  has  had  a  "  full,  fair  and  impar- 
tial trial,"  who  has  been  forced  to  defend  himself,  on  the  same 
indictment,  against  two  inconsistent  and  widely  different 
offenses.    Moreover,  under  our  practice,  on  a  petition  for  new 


STATE  V.  FITZSIMON. 


347 


trial  tlic  ])('titioner  may  proceed  at  once,  as  he  has  done  in  this 
case,  on  tiie  two  grounds  that  the  court  lias  erred  in  its  rul- 
ings, iiiid  that  the  verdict  is  against  the  evidence.  Elliott  v. 
Bmi/n'f,  13  R.  I.  408,  407. 

We  do  not  thinic  tiie  court  erred  in  refusing  to  allow  the 
(Icfcndiuit  to  offer  evidence  of  intimacy,  on  the  part  of  the 
woman  assaulted,  with  other  men  than  the  defendant.  While 
the  chai'actor  of  the  prosecutrix  for  chastity  may  he  attacked 
by  the  defendant  in  a  case  of  this  sort,  we  do  not  think  that 
specific  acts  of  improper  conduct  with  other  men  can  bo  shown. 
1  Grecnl.  Ev.  (I3th  P2d.)  §  54,  and  cases  cited  in  note  1;  liir/.  v. 
Ifohnix,  12  Cox,  Crim.  Cas.  137;  MeComhs  v.  State,  8  Ohio  St. 
043;  IState  v.  Forshner,  43  N.  II.  S9;  State  v.  Knapjh  45  N.  II. 
148;  Whart.  Crim.  Law,  §  1151.  In  civil  cases  growing  out  of 
an  allci^od  indecent  assault,  it  has  been  held  that  both  the 
charattcr  of  the  woman  assaulted,  for  chastity,  as  well  as  spe- 
cilic  acts  of  uncluistity,  may  be  shown  in  defense.  Mitchell  v. 
Warh  13  li.  I.  045.  ' 

The  court  did  not  err  in  permitting  the  state  to  prove  what 
the  prosecutrix  said  to  a  person  in  the  house  about  the  affair 
immediately  after  its  occurrence,  as  it  was  clearly  part  of  the 
res  (jisttK.  State  v.  Murphy,  10  R.  I.  528;  McComhs  v.  State, 
supra;  Hex  v.  Clarke,  2  Stark  ie  241;  State  v.  Patrick,  107  Mo. 
147, 1<>3-108.  While  the  evidence  submitted  on  the  part  of 
the  state  tends  to  show  that  the  defendant  did  in  fact  enter  the 
house  at  two  different  times  on  the  night  in  question,  yet,  as 
it  also  tends  to  show  that  both  of  said  entries  were  maile  in 
pursuit  of  but  one  purjwse,  to  wit,  the  commission  of  a  felony, 
and  that  his  design  being  frustrated  on  his  first  entry  by  being 
frightened  away  by  the  inmates  of  the  house,  ho  re-entered 
about  two  hours  hater,  the  court  did  not  err  in  refusing  to  rule 
that  this  constituted  two  separate  burglaries,  and  that  the 
attorney-general  should  bo  compelled  to  elect  upon  which  one 
he  would  go  to  the  jury.  See  Bish.  Crim.  Law,  §  793.  But 
even  if  the  second  breaking  could  bo  properly  regarded  as  a 
distinct  and  separate  offense  from  the  first,  it  was,  nevertheless, 
comporcmt  evidence,  as  tending  to  show  the  whereabouts  of  the 
defendant  during  the  night  in  question,  and  especially  is  this 
true  when,  as  in  this  case,  the  two  breakings,  if  such  there 
were,  were  only  separated  in  point  of  time  by  the  brief  space 
of  about  two  hours     People  v.  Mead,  50  Mich.  228.    As  there 


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must  be  a  new  trial  of  the  case  for  the  reason  first  above  given, 
we  express  no  opinion  as  to  the  suflSciency  of  the  evidence 
to  warrant  a  conviction  on  either  of  said  counts.  Tctition 
granted. 

T^OTE.— Joinder  of  counts  or  persons. — Two  clo9«ly  allied  offenses  arising 
from  the  same  transaction,  which  can  be  established  by  substantially  the 
same  evidence,  may  be  included  in  separate  coimts  of  the  same  indictment. 
State  V.  Baity,  50  Ohio  St. 

TiL'o  or  more  acts  connected  with  the  same  transaction. — Where  a  statute 
makes  indictable  two  or  more  distinct  acts  connected  with  the  same  trans- 
action, each  of  which  may  be  considered  as  representing  a  phase  of  the 
same  event,  they  may  be  coupled  in  one  count.  Com.  v.  Miller,  107  Pa. 
St.  270;  1  Am.  Cr.  Rep.  299. 

Offenses  of  larceny  and  burglary,  though  committed  jointly,  cannot  be 
charged  by  different  counts  in  the  same  indictment.  Crook  v.  State,  59  Ark. 
320. 


Fkench  v.  State. 

(85  Wis.  400.) 

Insanity  of  Accused:  Constittitional  law— Presence  during  trial— Record. 

1.  Under  Laws  1883,  c.  104,  providing  that  if,  upon  the  preliminary  trial 

of  a  special  issue  of  insanity,  the  jury  shall  be  unable  to  agree,  tlio  court 
shall  "  discharge  them  from  the  further  consideration  of  such  issue," 
and  unless  the  plea  of  insanity  be  withdrawn,  "  forthwith  order  the 
trial  upon  the  plea  of  not  guilty  to  proceed,  and  the  question  of  insanity 
involved  in  such  special  issue  shall  be  tried  and  determined  by  the  jury 
with  the  plea  of  not  guilty,"  where  the  jury  disagrees,  it  is  error  t<> 
order  the  trial  upon  the  pleas  of  not  guilty  and  insanity  to  proceed  be- 
fore the  same  jury,  because  such  jury  is  not  impartial,  and  defendant 
is  deprived  of  his  right  to  have  the  jury  specially  impaneled  to  try  him 
for  the  crime  charged,  and  is  denied  his  right  of  challenge. 

2.  It  being  the  constitutional  right  of  one  accused  of  crime  to  be  present 

during  the  trial  and  to  confront  the  witnesses  against  him,  a  conviition 
of  murder  will  be  set  aside  where  neither  the  minutes  of  the  clerk  nor 
the  record  shows  that  the  accused  was  present  when  the  verdict  was 
rendered  and  sentence  pronounced  against  him,  or  that  he  was  asked 
by  the  court  if  he  had  anything  to  say  why  sentence  should  not  be  pro- 
nounced against  him. 

Error  to  Circuit  Court,  Ashland  County;  J.  K.  Parish, 
Judge. 

William  G.  French  was  convicted  of  murder  and  he  pros- 
ecutes a  writ  of  error.    Reversed. 


FRENCH  V.  STATE. 


340 


Georfje  T.  Merrill,  for  pLaintiff  in  error,  cited,  in  behalf  of 
the  proi)osition  tiiat  the  record  must  show  that  the  prisoner 
was  present  at  the  trial,  and  asked  bafore  sentence,  whether 
he  had  anything  to  say  why  sentence  should  not  be  pronounced 
ao-ainst  him,  the  following :  Whart.  Crira.  PI.  &  Pr.  (9th  Ed.) 
§§540,  545,  549;  1  Bish.  Crim.  Proc.  (3d  Ed.)  §  1353;  Bough- 
i^iy  0.  Com.,  69  Pa.  St.  286;  Fr{7ie  v.  Com.,  18  Pa.  St.  103; 
Ifooker  v.  Com.,  13  Grat.  763;  Bi/son  v.  State,  26  Miss.  362; 
IMIs  0.  State,  62  Miss.  391;  Beardon  v.  State,  44  Ark.  331; 
Smith  V.  People,  8  Colo.  457,  920;  State  v.  Schoenwald,  31  Mo. 
147;  State  v.  Johnson,  35  La.  Ann.  208;  State  v.  Jones,  61  Mo. 
232;  S/iajyoonmash  v.  U.  S.,  1  "Wash.  T.  188;  Lovett  v.  State,  28 
Fla.  35t);  Chit,  Crim.  Law,  *414;  State  v.  Buchm^,  25  Mo.  167; 
State  V.  Braunschweig,  36  Mo.  397;  State  v.  Mathews,  20  Mo. 
55;  State  v.  Cross,  27  ¥  ).  332;  People  v.  PerJcins,  1  Wend.  91; 
Clai'l  V.  State,  4  Humph.  254;  Andreius  v.  State,  2  Sneed,  550; 
Smjgs  V.  State,  8  Smedes  &  M.  772;  Ilopt  v.  People,  110  U.  S. 
574;  Sylvester  v.  State,  71  Ala.  17;  State  v.  Greer,  22  W.  Va. 
SCO;  Hill  V.  State,  17  Wis.  675;  Anderson  v.  State,  3  Pin.  367; 
Sam  V.  State,  69  Wis.  530;  Douglass  1).  State,  3  Wis.  820;  Davis 
V.  State,  38  Wis.  487;  Coin.  v.  Andrews,  3  Mass.  126;  Biggs  v. 
Lloi/d,  70  Cal.  447;  Peterson  v.  State,  45  Wis.  535. 

/.  Z.  O'connor,  Atty.  Gen.,  and  J.  M.  Clancy,  Asst.  Atty. 
Gen.,  in  behalf  of  the  State,  cited,  per  contra,  the  following : 
//;//  V.  State,  17  Wis.  675;  Barrett  v.  State,  1  Wis.  156;  Oris- 
wold  V.  State,  24  Wis.  145.  Zawrerce  v.  Com.,  30  Grat.  845; 
J)odge  V.  People,  4  Neb.  220;  Stite  v.  Craton,  6  Ired.  164; 
Swttloi  V.  State,  19  Ark.  205;  Stephens  v.  People,  4  Parker, 
Crim.  R.  396;  Id.,  19  N.  Y.  549;  Schirmer  v.  People,  33  111.  276; 
State  V.  Wood,  17  Iowa  18;  Rhodes  v.  State,  23Ind,  24;  Jeffries 
V.  Com.,  12  Allen  146. 

Ortox,  J.  The  plaintiff  in  error  was  tried,  convicted  and 
sentenced  for  the  murder  of  Gavin  M.  Steel,  on  the  5th  day  of 
March,  1891.  A  motion  in  arrest  of  judgment  and  a  motion 
for  a  new  trial  were  overruled.  The  case  comes  before  this 
court  on  writ  of  error;  and  a  great  many  errors  are  assigned 
for  the  reversal  of  the  judgment.  The  first  two  errors  assigned 
and  urged  by  the  learned  counsel  of  the  plaintiff  in  error  ap- 
pear by  the  record,  and  are  of  the  gravest  importance,  and  ma- 
terial, and  in  our  opinion  are  fatal  to  the  conviction.    It  is 


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350 


AMERICAN  CRIMINAL  REPORTS. 


necessary  to  consider  only  these,  as  a  new  trial  must  be  iiad  in 
the  case;  and  the  other  errors  assigned,  of  less  importance  and 
not  so  clearly  apparent,  may  not  again  occur. 

1.  The  prisoner  was  compelled  to  be  tried  before  the  same 
jury  that  had  heard  and  considered  the  evidence  on  the  special 
issue  of  insanity,  and  had  been  unable  to  agree,  and  had  been 
discharged  from  further  consideration  of  such  special  issue  as 
such.  The  prodsions  of  the  Revised  Statutes  on  this  subject 
were  such  that,  if  the  jury  impaneled  to  try  such  special  issue 
of  insanity  failed  to  agree,  the  court  could  discharge  them,  and 
impanel  another  jury  to  try  the  same,  and  so  on  until  there 
should  be  an  agreement  and  verdict  as  in  other  cases.  To  remedy 
what  w^as  supposed  to  be  an  omission  or  defect,  chapter  164, 
Laws  1883,  was  enacted,  as  follows :  "  If  the  jury  shall  lie  un 
able  to  agree  upon  a  verdict  on  the  trial  of  such  special  issue, 
the  court  shall,  for  that  reason,  discharge  them  from  the 
further  consideration  of  such  special  issue  as  such,  and  unless 
such  special  plea  be  withdrawn  by  such  accused  person  or 
counsel  in  his  behalf,  the  court  shall  forthwith  order  tlio  trial 
upon  the  plea  of  not  guilty  to  proceed,  and  the  question  of 
insanity  involved  in  such  special  issue  shall  be  tried  and  de- 
termined by  the  jury  with  the  plea  of  not  guilty."  Under  this 
provision  the  circuit  court,  when  the  jury  impaneled  to  try 
such  special  issue  of  the  insanity  of  the  accused  when  ho  did 
the  killing  were  unable  to  agree  upon  a  verdict,  ordered  the 
trial  upon  the  plea  of  not  guilty  to  proceed  before  the  same 
jury.  This  was  a  very  grave  error.  The  statute  does  not  so 
provide.  If  it  did,  its  constitutionality  would  be  at  least  ques- 
tionable. The  court  should  "  forthwith  order  the  trial  upon 
the  plea  of  not  guilty  to  proceed"  before  another  jury,  to  be 
selected,  impaneled,  and  sworn  to  try  the  case.  This  is  con- 
sistent with  the  act  and  the  prisoner's  rights.  This  jury  had 
heard  all  the  evidence  and  arguments,  as  well  as  the  instruc- 
tions of  the  court  on  the  issue  of  insanity,  the  question  on 
which  the  guilt  or  innocence  of  the  accused  depended,  and  had 
deliberated  upon  it  sufficiently  to  know  that  they  were  unable 
to  agree,  and  had  disagreed.  The  very  fact  of  their  disagree- 
ment implies  that  they  had  all  formed  opinions  on  it,  and  that 
their  opinions  did  not  agree.  Part  of  the  jury  had  formed  an 
opinion  that  the  accused  was  insane,  and  part  that  he  was  not. 
It  is  said,  although  it  is  not  material,  that  the  jury  stood  ten 


iiad  in 
lice  and 


FRENCH  V.  STATE. 


851 


one  way  and  two  the  other  way.  The  same  issue  of  the  in- 
sanity of  the  accused  was  still  undetermined,  and  had  to  be 
tried  again  with  his  plea  of  not  guilty.  He  had  the  undoubted 
right  to  have  that  question,  as  well  as  all  others  involved  in 
his  plea  of  not  guilty,  tried  by  an  impartial  jury.  The  case 
stood  precisely  as  it  would  if  these  statutes  in  relation  to  a 
special  issue  of  insanity''  had  not  been  enacted.  The  accused  is 
placed  on  trial  for  the  crime.  His  insanity  is  a  question  ma- 
terial to  the  case.  A  jury  is  forced  upon  him  to  try  his  case, 
all  of  whom  had  formed  and  expressed  an  opinion  on  the  ques- 
tion whether  he  was  or  was  not  insane  when  he  killed  the  de- 
ceased. Does  the  law  suffer  or  sanction  such  a  biased,  partial 
and  prejudiced  jury  for  the  trial  of  one  charged  with  the  crime 
of  murder  ?  Any  one  would  say  that  this  would  be  a  judicial 
outrage  upon  the  legal  and  constitutional  rights  of  the  accused. 
And  yet  this  is  just  such  a  case.  The  accused  has  the  right  to 
demand  that  he  be  tried  before  a  fair  and  impartial  jury. 
Const.,  Art.  1,  §  7,  provides  that  the  accused  shall  have  "  a 
speedy  public  trial  before  an  impartial  jur3\"  Besides  this, 
the  right  of  the  accused  to  have  a  jury  specially  selectetl  and 
impaneled  to  try  him  for  the  crime  charged,  and  his  right  of 
challenge,  were  cut  off  and  denied.  It  is  obvious  and  self- 
evident  that  this  jury  Avas  an  unlawful  one,  and  that  the  ac- 
cused was  deprived  of  his  constitutional  right  of  trial  by  jury. 
It  has  ^  len  uniformly  held,  and  from  early  times  in  the  history 
of  jury  trials  for  crime,  that  the  grand  jury  that  found 
the  indictment,  and  each  one  of  them,  is  disqualified  from  sit- 
ting on  the  petit  jury  to  try  the  accused.  Gates'  Case,  10  How. 
St.  Tr.  10T9-10S1;  1  Bish.  Crim.  Proc,  §  912;  CoUedge's  Case, 
8  How.  St.  Tr.  588;  Hawk.  P.  C,  bk.  2,  c.  43,  §  27.  Our  own 
statute  disqualifies  the  grand  juror  from  being  a  petit  juror  on 
the  trial  of  the  case.  Section  4688,  Kev.  St.  ''  It  is  the  right 
of  the  accused,  who  is  to  be  tried  by  a  jury,  that  the  first  opin- 
ion formed  by  the  jurors  shall  be  the  one  which  results  from 
the  evidence  produced  at  the  trial."  Therefore  the  members 
of  the  grand  jury  that  framed  the  indictment,  and  those  who 
have  passed  upon  the  question  as  jurors  in  the  same  case,  are 
disqualified  to  be  jurors  to  try  the  accused.  1  Bish.  Crim.  Proc, 
§  911;  Rice  v.  State,  16  Ind.  298,  tUbvcart  v.  State,  15  Ohio  St. 
155.  A  juror  on  a  former  trial  that  resulted  in  a  mistrial  is 
not  competent  to  serve  on  the  second  trial.    Edinondson  v. 


352 


AMERICAN  CRIMINAL  REPORTS. 


Wallace,  20  Ga.  660.  And  that  is  so,  even  if  the  case  is  not  the 
same,  if  the  issues  and  the  defendant  are  the  same.  Garth- 
waite  V.  Tatum,  21  Ark.  336.  A  juror  who  has  formed  an 
opinion  on  hearing  all  the  evidence  in  the  case,  not  then  bein*' 
a  juror,  is  disqualified.  Much  more,  where  the  juror  has  heard 
the  evidance,  and  formed  an  opinion  once  as  a  juror,  is  dis- 
qualified. Argent  v.  Darrell,  2  Salk.  648;  Weeks  v.  Medler,  20 
Kan.  57;  State  v.  Sheeley,  15  Iowa  404;  Thomp.  &  M.  Jur.,  195; 
Greenfield  v.  People,  74  x^.  Y.  277.  Many  more  authorities  are 
cited  to  the  same  principle  in  the  very  excellent  brief  of  the 
learned  counsel  of  the  plaintiff  in  error.  But,  as  said  before, 
it  is  self-evident  that  such  a  jury  is  not  only  disqualified  from 
trying  the  accused  for  the  crime  charged,  but  to  force  the  ac- 
cused to  be  tried  before  such  a  jury  is  a  denial  of  his  right  to 
a  jury  trial  so  clearly  protected  by  the  constitution  and  the 
laws.  If  the  grand  jury  are  unfit  jurors  to  try  the  accused,  on 
the  ground  that  they  have  formed  an  opinion  in  the  case,  and 
expressed  it  by  the  indictment  on  a  mere  ex  parte  examination 
of  the  evidence,  much  more  is  this  jury,  that  has  heard  all  the 
evidence  on  both  sides,  and  disagreed  in  their  opinions. 

2.  It  is  conceded  by  the  learned  attorney-general  that 
neither  the  minutes  of  the  clerk  nor  the  record  shows  that  the 
prisoner  was  present  in  court  when  the  verdict  of  guilty  was 
rendered  against  him  by  the  jury,  or  that  he  was  present  when 
the  sentence  was  pronounced  against  him,  or  immediately  be- 
fore, or  that  he  was  asked  by  the  court  if  he  1:  '  anything  to 
say  why  he  should  not  be  so  sentenced.  The  record  does  not 
show  that  he  was  present  at  any  time  during  the  trial  for  the 
crime,  except  when  he  was  arraigned  and  pleaded.  It  was  his 
constitutional  right,  that  he  may  not  waive,  to  be  present  dur- 
ing the  whole  trial,  and  "  meet  the  witnesses  face  to  face,"  and 
"  to  be  confronted  with  the  witnesses  against  him."  Article  6, 
Const.  U.  S.;  section  7,  Art.  1,  State  Const.  This  is  not  only 
the  indispensable  right  of  the  accused,  but  the  record  must 
show  that  he  enjoyed  that  right,  or  it  does  not  show  that  he 
had  a  legal  and  constitutional  trial.  "  In  felonies,  the  record 
must  show  the  defendant  to  have  been  present  at  the  arraign- 
ment and  testing  of  the  jurors.  In  capital  cases,  if  not  in  all  fel- 
onies, the  record  must  must  show  that  the  defendant  was  pres- 
ent at  the  trial,  verdict  and  sentence."  Whart.  Crim.  PI.  & 
Pr.,  §§  545-549.    The  crime  of  murder  is  still  a  capital  crime 


FRENCH  V.  STATE. 


353 


in  this  state,  bepraise  so  recently  followed  by  the  death  penalty. 
People  V.  Ferkins,  1  Wend.  91.  In  such  cases  "  the  presence 
of  the  prisoner  is  essential,  and  where  the  law  requires  it  the 
record  must  show  it."  1  Bish.  Criin.  Proc.,  §  1353;  Dmigherty 
V.  Cm.,  69  Pa.  St.  286;  Pritie  v.  Com.,  18  Pa.  St.  103.  This  is 
therul  as  well  in  all  felonits.  Hooker  v.  Com.,  13  Grat.  763; 
Dyson  v.  State,  26  Miss.  362;  lioUs  v.  State,  52  Miss.  391;  Bear- 
don  V.  State,  44  Ark.  331;  Smith  v.  People,  8  Colo.  457;  State  v. 
Johnson,  35  La.  Ann.  208;  State  v.  Jones,  61  Mo.  232;  Shapoon- 
mash  V.  U.  S.,  1  Wash.  T.  188;  Lxyoett  v.  State,  supra;  Chit. 
Crira.  Law,  414;  State  v.  H itchier,  25  Mo.  167;  State  v.  Ilatth- 
em,  20  Mo.  55;  Clark  v.  State,  4  Humph.  254;  Andrews  v. 
State,  2  Sneed  550;  Scaggs  v.  State,  8  Smede^  &  M.  722;  Ilopt 
V.  Utah,  110  U.  S.  574;  Sylvester  v.  State,  71  Ala.  17.  No  pre- 
sumption will  be  indulged  in  that  the  prisoner  was  present  if 
the  records  fail  to  show  it.  Douglass  v.  State,  3  Wis.  820;  Davis 
V.  State,  38  Wis.  487.  This  is  held  as  to  the  arraignment  of  the 
prisoner,  but  his  presence  is  just  as  essential.  In  the  late  case 
of  Ball  V.  U.  S.,  140  U.  S.  118,  it  is  held  essential  that  the 
record  should  show  that  the  prisoner  was  present,  and  asked 
before  sontence  whether  he  had  anything  to  say  why  sentence 
should  not  be  pronounced  against  him.  The  chief  justice  cites 
Rexv.  Harris,  1  Ixl.  Raym.  267;  2  Hale,  P.  C.  401;  Com.  Dig. 
"Indictment,"  N.;  2  Hawk.  P.  C,  c.  48,  §  22;  Whart.  Crim. 
PI.  &  Pr.,  §§  549-906;  Messner  v.  I*cople,  45  N.  Y.  1;  Dough- 
erty v.  Com.,  supra;  1  Bish.  Crim.  Proc,  §§  275, 1293;  and  other 
cases  cited  above. 

This  case  is  of  itself  the  highest  authority  as  to  this  consti- 
tutional right  of  a  prisoner  in  a  capital  case.  The  learned 
counsel  of  the  ])laintiff  in  error  has  also  briefed  this  question 
very  ably  and  exhaustively,  and  has  made  many  quotations  of 
the  text  of  the  opinions  to  which  reference  may  be  made. 
Many  of  the  above  authorities  also  hold  that  no  presumptions 
will  be  indulged  in  to  supply  the  )'ecord  in  such  a  case,  and 
that  there  is  no  waiver  of  the  right  less  than  a  positive  and 
personal  relinquishment  of  it,  and  this  I  understand  to  be  the 
effect  of  our  own  decisions.  The  learned  attorney-general  has 
cited  a  few  cases  that  seem  ;o  hold  the  other  way,  but  they  are 
certainly  against  the  great  weight  of  authority  in  this  coun- 
try, as  well  as  in  England.    These  great  common-law  rights 


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K-l'-- 


354 


AMERICAN  CRIMINAL  REPORTS. 


have  been  made  constitutional  provisions  in  the  various  states 
and  so  made  essential  and  paramount,  and  also  indispensable 
in  trials  for  capital  offenses  and  felonies.  It  is  not  too  strict 
to  hold  that  in  all  such  cases  the  accused  must  be  present  in 
court  to  meet  the  witnesses  face  to  face,  and  to  test  the  jury, 
and  when  the  verdict  is  rendered,  and  be  asked  if  he  has  any- 
thing to  say  why  the  sentence  should  not  be  pronounced  against 
him,  and  to  meet  his  sentence,  and  also  still  more  important 
that  he  have  a  trial  "  by  an  impartial  jury."  These  are  great 
constitutional  safeguards  against  oppression  and  injustice  that 
must  not  be  abridged  or  compromised. 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  a  new  trial.  The  wardon  of  the  state  prison  at 
Waupun  will  deliver  the  prisoner  to  the  sheriff  of  Ashland 
county,  to  be  held  in  custody  by  him  until  he  is  discharged 
from  such  custody  accortling  to  law. 

Note. — Presence  of  accused. — It  is  the  absolute,  unquestionable  right  of  a 
defendant  to  be  present  at  each  stage  of  a  criminal  procedure  which  may 
affect  his  liberty  or  put  hia  life  in  jeopardy.  And  in  capital  cases  especially 
the  rule  is  well  established  that  such  presence  must  affirmatively  appear  of 
record.  For  an  appellate  court  to  presume  such  presence  would  be  unsafe. 
1  Bish.  Cr.  Procedure,  §  1180.  An  order  appointing  a  day  for  trial  and  fix- 
ing the  number  of  jurors  to  be  summoned,  should  never  be  made  in  the 
absence  of  a  defendant,  and  such  absence  will  be  presumed  imless  presence 
of  defendant  is  shown  by  positive  affirmation  in  the  record.  The  failure  of 
the  defendant  to  object  is  no  waiver.  Sylvester  v.  State,  71  Ala.  17; 
Spicer  v.  State,  69  Ala.  159:  1  Bish.  Cr.  Proc.,  g§  111,  125, 995,  et  seq.;  Cooley's 
Const.  Lim.  (4th  Ed.),  394-5. 

Trial  by  jury.— A  defendant  can  not  waive  a  trial  by  jury.  Tlie  rule  is 
universal  as  to  felonies;  not  quite  so  as  to  misdemeanors.  But  the  weight 
of  authority  favors  its  application  to  both  classes  of  crime,  as  being  safer 
and  better  alike  in  principle  and  practice.  State  v.  Locktcood,  43  Wis.  403; 
Cooley's  Const  Lim.,  819,  410,  note;  Proffatt's  Jury  Trials,  §  118. 


State  v.  James  H.  Kellet. 

(65  Vt.  531.) 

Larceny:  Evidence  of  ottier  thefts. 

On  a  trial  for  larceny,  evidence  of  an  accomplice  that  after  the  return  of 
himself  and  defendant  to  the  latter's  home  with  the  stolen  goods  they 
went  out  the  same  night,  and  stole  other  goods,  ia  inadmissible. 


STATE  V.  KELLEY. 


855 


Exceptions  from   "Washington  County  Court;   Thompson, 

Judge. 

James  H.  Kelley  was  inflicted  for  the  larceny  of  two  lap 
robes.  Verdict,  "  Guilty,"  and  sentence  on  verdict.  The 
respondent  excepts.    Keversed. 

The  only  witness  on  the  part  of  the  state  to  the  fact  of  the 
taking  was  one  Charles  Howe.  The  respondent  was  a  farmer, 
living  in  the  town  of  Northfield.  Howe  worked  for  him  on 
his  farm,  and  at  the  time  of  the  alleged  crime  was  keeping 
there  a  team  consisting  of  a  horse  and  express  wagon.  Howe 
testified  that  on  the  night  of  May  22, 1891,  at  the  suggestion 
of  the  respondent,  he  and  the  respondent  started  from  the 
respondent's  farm  with  his  (Howe's)  team,  to  go  to  Roxbury,  an 
adjoining  town,  to  steal  some  phosphate  from  a  storehouse 
known  as  the  "  Warren  Shed; "  that  upon  arriving  at  this  shed 
they  broke  it  open,  found  no  phosphate  in  it,  but  carried  away 
from  it,  and  placed  in  their  wagon  some  baskets  and  butter 
tubs;  that  from  there  they  proceeded  to  several  other  places  in 
that  vicinity,  stealing  from  these  various  places  several  arti- 
cles—a robe  and  whip  from  one,  two  horse  bridles  from 
another,  a  blanket  from  another,  a  bag  of  meat  from  another 
—all  of  which  articles  were  taken  and  placed,  sometimes  by 
Howe  and  sometimes  by  the  respondent,  in  the  express  wagon;^ 
that  in  the  course  of  the  expedition  they  stopped  at  the  house 
of  one  Frank  Spaulding,  adjoining  which  was  a  shed;  that  the 
respondent  sat  in  the  wagon,  and  held  the  team,  while  Howe 
went  into  the  shed,  and  brought  out  and  placed  in  the  wagon 
the  two  lap  robes  for  the  larceny  of  which  the  respondent  was 
on  trial;  that  they  afterward  drove  home  and  had  a  lunch; 
that  after  lunch  the  respondent  suggested  that  they  were  still 
without  their  phosphate,  and  that  thereupon,  at  his  instance, 
they  went  to  a  neighboring  store,  and  stole  two  bags.  There 
was  no  witness  except  Howe  to  the  fact  of  the  taking,  or  the 
fact  of  the  expedition,  or  the  fact  that  Howe  and  the  respondent 
were  together  in  Roxbury  that  night,  which  the  respondent 
denied;  but  the  state  was  allowed  to  prove  by  the  ownere  of 
those  various  articles  that  they  were  stolen  by  some  one  about 
that  time,  and  that  certain  of  the  articles  were  found  upon  the 
premises  of  the  respondent  August  24th  following.  The 
respondent  excepted  to  the  admission  of  the  evidence  relating 


356 


AMERICAN  CMMINAL  REPORTS. 


to  the  commission  of  any  other  larceny  than  the  one  for  whicii 
he  was  on  trial. 

Z.  8.  Stanton,  State's  Attorney,  and  J.  If.  Senter,  for  tho 
State. 
J.  A.  Wing  and  J.  G.  Wing,  for  respondent. 

MuNsoN,  J.  It  is  a  general  rule  that  the  charge  uponwliich 
a  respondent  is  being  tried  can  not  be  supported  by  proof  of  1  is 
having  committed  other  offenses.  Rose,  Crim.  Ev.,  81;  Shaff. 
ner  v.  Com.,  72  Pa.  St.  60.  But  evidence  which  legitimately 
tends  to  support  the  charge  is  not  to  be  excluded  on  the 
ground  that  it  will  show  other  oifenses.  1  Whart.  Crim.  Law, 
§  G49;  Com.  v.  Choate,  105  Mass.  451.  The  numerous  cases  in 
which  evidence  of  this  nature  has  been  received  have  been 
classified  with  more  or  less  particularity  by  different  text 
writers.  Steph.  Dig.  Ev.,  Arts.  11, 12;  1  Greenl.  Ev.,  §  53,  note; 
1  Bish.  Crim.  Proc.,  g§  1125-1129;  Strong  v.  State,  U  Amer. 
Rep.  299,  note.  Evidence  tending  to  show  thf  t  the  respondent 
has  been  guilty  of  other  like  offenses  is  received  in  cases  where 
it  is  necessary  to  prove  a  knowledge  of  the  character  of  the 
thing  in  respect  of  which  the  act  was  done.  Thus,  upon  the 
trial  of  one  charged  with  passing  counterfeit  money,  it  may  be 
shown  that  he  has  upon  other  occasions  passed  money  of  that 
character.  lieg.  v.  Forster,  Dear.  Cr.  Cas.  456;  Com.  v.  BIge- 
low,  8  Mete.  (Mass.)  235.  See  Wood  v.  U.  S.,  16  Pet.  342.  So, 
on  an  indictment  for  receiving  stolen  goods,  it  may  be  shown 
that  the  respondent  has  at  different  times  received  from  the 
same  individual  other  goods  known  to  have  been  stolen  from 
the  same  person  or  place.  Jiex  v.  Dtmn,  1  Moody  Cr.  Cas. 
146;  Coppermanv.  People,  h%  N.  Y.  591.  Evidence  of  this 
description  has  also  been  received  to  establish  the  felonious 
use  of  certain  destructive  agencies,  which  may  be  so  obscurely 
employed  as  to  leave  their  results  naturally  referable  to  acci- 
dent. Thus,  upon  the  charge  of  burning  a  building  with 
intent  to  defraud  the  insurers,  evidence  that  other  insured 
buildings  owned  by  the  respondent  had  burned  from  unex- 
plained causes  has  bean  received.  Eeg.  v.  Gray,  4  Fost.  &  F. 
1102.  But  see  State  v.  Raymond,  53  N.  J.  L.  200.  And  it  lias 
been  held  that  when  a  murder  is  alleged  to  have  been  com- 
mitted by  administering  poison  to  the  deceased  it  may  be 


STATE  V.  KELLEY. 


867 


shown  that  others  who  had  previously  received  food  or  medi- 
cine from  the  respondent  had  died  of  the  same  poison.  Jieg.  v. 
Geerinfj,  18  Law  J.  M.  Cas.  215;  Goersen  v.  Com.^  99  Pa.  St. 
388, 100  Pa.  St.  477.  Evidence  covering  the  commission  of 
another  offense  is  also  admissible  when  two  crimes  are  so  linked 
tof'ether  in  point  of  time  or  circumstance  that  one  can  not  be 
fully  shown  without  proving  the  other.  It  is  doubtless  true 
that  the  criminal  acts  shown  in  many  of  the  cases  referred  to 
in  support  of  this  rule  would  come  within  some  phase  of  the 
two  comprehensive  rules  hereafter  stated;  but  it  is  evident 
that  the  circumstantial  connection  between  transactions  of  a 
criminal  nature  may  be  so  intimate  as  to  require  proof  of  them 
all,  independently  of  other  grounds  of  admission.  Mason  v. 
State,  42  Ala.  532;  State  v.  Foltoell,  14  Kan.  105;  State  v. 
Wentworth,  37  N.  II.  190;  Heath  v.  Com.,  1  Rob.  (Va.)  735; 
Bmm  V.  Com.,  70  Pa.  St.  319;  liex  v.  Ellis,  6  B.  &C.  145. 

Such  evidence  is  also  received  to  show  identity  of  person,  local 
proximity,  or  other  facts  calculated  to  connect  the  respondent 
with  the  commission  of  the  offense.  HaUeck  v.  State,  05  Wis. 
147;  Com.  v.  Choate,  105  Mass.  451.  In  the  case  last  cited  there 
was  evidence  tending  to  show  that  the  building  which  the 
respondent  was  charged  with  burning  had  been  fired  by  means 
of  an  ingeniously  constructed  box,  adapted  to  incendiary  pur- 
poses only;  and  the  prosecution  was  permitted  to  show  that 
the  respondent  had  the  skill,  materials  and  tools  requisite  for 
the  construction  of  this  box,  by  evidence  which  tended  to  prove 
that  he  had  constructed  and  made  felonious  use  of  another  box 
of  the  same  description.  Again,  the  prosecutor  may  show 
motive,  puri)ose,  preparation,  or  concealment,  even  though  it 
involves  proof  of  a  distinct  crime.  On  a  trial  for  murder,  the 
prosecution  may  show  an  adulterous  intimacy  between  the 
respondent  and  the  wife  of  the  deceased,  not  broken  off  before 
the  commission  of  the  offense  charged.  Com.  v.  Ferrigan,  44 
Pa.  St.  380.  An  intention  to  do  the  violence  alleged  may  be 
established,  not  only  by  showing  threats  of  injury,  but  by 
showing  indictable  attempts  to  do  the  injury.  Williams  v. 
State,  8  Humph.  585;  Zamb  v.  State,  00  Md.  285.  It  may  be 
shown  upon  the  trial  of  one  charged  with  burning  an  out- 
building that  he  had  previously  poisoned  the  occupant's  house 
dog.  Ilalleck  v.  State,  05  Wis.  147.  On  an  indictment  for 
murder  it  may  be  shown  that  the  deceased  had  taken  the  life 


V.      % 


;f?v: 


358 


AMERICAN  CRIMINAL  REPORTS. 


of  another  on  the  respondent's  procurement,  and  had  boon  seen 
in  the  act.  liex  v.  Clewes^  4  Car.  &  P.  221.  It  is  also  held 
that  in  establishing  certain  offenses  involving  sexual  intimacy 
the  prosecution  may  show  other  instances  of  like  criminal  con- 
duct between  the  respondent  and  the  one  with  whom  the 
offense  is  claimed  to  have  been  committed.  This  is  upon  the 
ground  that  it  is  proper  to  show  the  existence  of  a  continuing 
adulterous  disposition  of  the  two  persons  toward  each  oilier 
and  that  there  can  be  no  better  evidence  of  such  a  disposition 
than  commissions  of  the  act  itself.  State  v.  Uridgman,  49  Vt. 
202.  But  it  will  be  noticed  that  this  evidence  touches  only 
the  respondent's  relations  to  the  particular  individual  con- 
cerned in  the  offense  charged.  Evidence  of  other  offenses  is 
never  received  to  establish  a  criminal  disposition  in  the  broad 
sense  of  the  term,  or  a  tendency  to  commit,  generally,  offenses 
like  the  one  alleged. 

The  admissibility  of  the  evidence  received  under  objection 
in  this  case  must  be  tested  by  the  rules  above  stated.  The  evi- 
dence covered  fifteen  larcenies  other  than  the  one  charged  in 
the  indictment.  These  larcenies  were  all  committed  on  the 
same  night,  and  all  but  one  on  the  same  ex{)edition.  They 
were  committed  at  different  buildings,  located  on  a  section  of 
road  several  miles  in  length.  They  were  not  committed  in  the 
execution  of  any  settled  plan,  but  were  severally  undertaken  as 
occasion  afforded.  They  were  all  accomplished  with  the  aid  of 
the  same  person.  Neither  the  respondent  nor  his  accomi)lice 
was  seen  by  any  one  during  the  time  of  the  occurrences.  The 
evidence  of  the  state  consisted  of  the  narrative  of  the  accom- 
plice, and  the  testimony  of  all  but  one  of  the  owners  of  the 
stolen  property  that  the  several  articles  were  in  the  places  from 
which  the  accomplice  said  they  were  taken,  and  that  they  were 
missed  about  the  time  the  accomplice  said  the  expedition  took 
place,  tof;  '^her  with  evidence  of  an  identification  of  some  of 
the  articles  by  their  owners  as  being  the  same  found  some 
months  after  upon  the  respondent's  premises.  The  mere  fact 
that  certain  larcenies  were  committed  on  the  same  night,  on 
the  same  expedition,  did  not  entitle  the  state  to  show  all  in 
pre  jf  of  one.  The  fact  that  both  the  respondent  and  the  wit- 
ness were  concerned  in  them  all  did  not  so  link  them  together 
as  to  make  evidence  of  all  admissible.  Evidence  of  the  lar- 
cenies not  embraced  in  the  charge  was  received  upon  the 


STATE  V.  KELLEY. 


359 


ground  that  the  fact  of  such  larcenies  having  been  committed, 
when  connected  with  the  testimony  as  to  the  time  when  and 
places  from  which  the  articles  were  missed,  and  of  the  subse- 
quent discovory  of  some  of  them  on  the  respondent's  premises, 
tended  to  corroborate  the  testimony  of  the  accomplice  as  to  the 
commission  of  the  theft  in  question.  But  such  evidence  could 
have  no  legitimate  corroborative  force  unless  there  was  some 
sutflcicnt  connection  between  those  offenses  and  the  one  iui* 
which  the  respondent  was  being  tried.  Testimony  that  on  the 
previous  night  the  witness  and  the  respondents  had  gone 
together  to  a  certain  place,  and  stolen  a  harness,  accomuunied 
with  evidence  of  a  li.irness  having  been  missed  at  that  time, 
would  have  had  no  tendency  to  corroborate  the  witness  in  his 
account  ot  this  theft.  The  question  is  whether  the  fact  that 
the  articles  shown  to  have  been  missed  and  in  part  found  were 
taken  on  the  same  night  or  the  same  expedition  afforded  the 
necessary  connection. 

If  the  evidence  was  admissible  in  this  view,  it  must  have 
been  upon  the  ground  that  the  fundamental  assertion  of  the 
principal  witness  was  that  such  an  expedition  did  occur  on  the 
night  and  over  the  road  stated;  and  that  evidence  of  these  other 
articles  having  been  left  at,  and  afterward  missed  from,  the 
places  stated,  and  of  some  of  them  being  finally  found  on  the 
respondent's  premises,  was  corroborative  of  the  fact  upon  Avhich 
the  testimony  concerning  the  taking  of  the  lap  robes  rested. 
But  it  is  urged  with  some  force  that  evidence  that  certain  arti- 
cles were  missed  along  the  line  of  this  road  soon  after  the 
night  in  question  in  no  way  corroborated  the  statements  of  the 
witness  connecting  the  respondent  with  the  expedition.  The 
same  objection  might  perhaps  be  urged  to  the  evidence  relat- 
ing to  such  of  the  articles  as  were  afterward  found  on  the  re- 
spondent's premises,  in  view  of  the  fact  that  the  accomplice 
Uved  and  kept  his  team  at  the  same  place.  If,  however,  it 
were  to  be  held  that  other  offenses  might  be  shown  on  the 
ground  above  stated,  this  would  not  sustain  the  admission  of 
so  much  of  the  testimony  of  the  principal  witness  as  related  to 
the  larceny  concerning  which  there  was  no  other  evidence. 

But  without  passing  upon  the  admissibility  of  the  evidence  on 
this  ground,  or  considering  other  grounds  upon  which  evidence 
of  some  of  the  larcenies  might  be  held  admissible,  we  think 
evidence  of  all  the  larcenies  committed  on  the  same  expedition 


m%..  i 


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i 


alj^ 


V'    '     l:V 


360 


AMERICAN  CRIMmAL  REPORTS. 


fi 


.'L<: 


was,  in  the  circumstances  of  this  case  a&  presented  by  the  ex- 
ceptions, fairly  within  the  reason  of  the  rule  first  above  stated 
It  does  not  appear  that  the  respondent's  defense  had  been  lim- 
ited by  any  previous  statement,  and  the  admissibility  of  the 
evidence  must  be  tested  upon  the  case  presented  by  the  state 
without  regard  to  the  respondent's  subsequent  testimony  that 
he  did  not  accompany  the  state's  witness  on  any  such  trip. 
The  expedition  was  with  a  team  which  belonged  to  the  wit- 
ness.    The  lap  robes  were  not  taken  by  the  respondent  per- 
sonally, nor  in  his  presence.     It  does  not  appear  that  there 
h.ad  been  any  conference  or  understanding  in  regard  to  them. 
The  respondent  remained  in  the  wagon,  which  stood  in  the 
road,  while  the  witness  went  away,  and  afterward  returned 
with  the  lap  robes,  and  placed  them  in  the  wagon.    If  the  evi- 
dence of  the  state  had  been  confined  to  this  sinele  occurrence 
the  jury,  even  if  satisfied  that  the  occurrence  took  place  as 
stated,  might  have  considered  that  there  was  room  for  a  rea- 
sonable doubt  as  to  whether  the  respondent  was  cognizant  of 
the  nature  of  the  transaction.     But  when  the  evidence  dis- 
closed the  gathering  from  diflFerent  places  of  a  miscellaneous 
assortment  of  personal  property,  in  taking  some  of  which  the 
respondent  was  actively  engaged,  and  a  return  with  the  load 
thus  made  up  to  the  respondent's  house,  it  might  no  longer  be 
doubted  that  the  responden*^  had  participated  in  the  removal 
of  the  lap  robes,  with  full  knowledge  that  they  were  stolen. 
Bat  testimony  received  on  this  ground  could  not  properly  be 
extended  beyond  the  history  of  the  load  which  contained  the 
lap  robes.    We  find  no  ground  upon  which  evidence  of  the 
subsequent  larceny  could  be  received.     After  the  respondent 
and  his  accomplice  had  returned  with  the  load  made  up  as 
above  stated,  and  stowed  the  articles  away,  it  was  suggested 
that  they  go  in  another  direction,  and  steal  some  phosphate; 
and  this  was  accordingly  done.     It  can  not  be  said  that  this 
was  made  admissible  by  the  evidence  of  the  state  as  to  the  in- 
ception of  the  first  expedition.     It  had  appeared  that  that  ex- 
pedition was  suggested  and  undertaken  by  the  respondent  for 
the  purpose  of  stealing  some  phosphate  which  he  expected  to 
find  at  a  certain  shed,  and  that  the  expedition  failed  of  its  orig- 
inal purpose  because  no  phosphate  was  found  there.     But  tlie 
respondent's  desire  to  steal  some  phosphate  can  not  be  held  to 
have  entitled  the  state  to  prove  everything  that  occurred  until 


STATE  V.  KELLEY. 


361 


that  desire  was  satisfied.  Evidence  of  a  second  expedition, 
undertaken  upon  a  renewal  of  the  original  purpose,  had  no 
legitimate  tendency  to  support  the  other  statements  of  the 
witness.  It  was  not  needed  to  relieve  his  main  narrative  of 
an  inherent  improbability.  Any  discrepancy  Avhich  might 
otherwise  have  been  suggested  between  the  alleged  purpose  of 
the  expedition  and  their  return  without  phosphate  was  suffi- 
ciently explained  by  their  failure  to  find  any;  and  evidence 
that  the  respondent  persisted  in  his  purpose  until  it  was  ac- 
complished had  no  explanatory  effect  beyond  this.  The  argu- 
ment by  which  it  is  sought  to  sustain  the  admissibility  of  this 
evidence  would  have  justified  proof  of  the  successful  termina- 
tion of  the  respondent's  attempt  to  steal  phosphate  if  it  had 
occurred  a  week  or  a  month  later.  We  find  no  such  connec- 
tion between  the  larceny  chartred  and  the  theft  of  phosphate 
on  another  expedition,  and  in  a  different  locality,  as  would 
make  evidence  of  the  latter  admissible  in  proof  of  the  former. 
It  was  effective  only  as  it  appealed  to  the  tendency  to  believe 
that  a  man  who  has  committed  a  larceny  at  one  time  may  very 
likely  have  been  guilty  of  the  same  offense  at  another.  Sen- 
tence vacated,  judgment  reversed,  and  cause  remanded. 

"SoTE— Evidence  of  the  other  offensea.~As  a  general  rule,  in  public  pi-ose- 
cutions  for  a  specific  oflfense  the  prosecutor  must  prove  that  tlie  accused  lias 
committed  tiie  offense  charged;  he  is  not  allowed  to  go  into  proof  of  the 
commission  of  any  other  offense  than  that  charged.  In  some  cases,  how- 
ever, in  order  to  prove  the  commissitm  of  the  offense  charged,  evidence  of 
circuinstanc««  is  admissible,  although  sucli  proof  may  involve  the  proof  of 
other  acts,  either  criminal  or  apparently  innocent.  Thus,  if  a  man  be  in- 
dicted for  nmrder,  and  the  testimony  shows  that  a  pistol  was  the  instrument 
which  ciiased  the  death,  evidence  that  that  pistol  was  the  property  of 
another  man,  at  whose  house  the  prisoner  was  on  the  night  prior  to  the 
murder,  tliat  the  pistol  could  not  be  found  in  the  liouse  after  tlie  prisoner 
left,  and  that  it  was  seen  in  his  possession  just  before  the  fat^il  act  was  com- 
mitted, is  unquestionably  admissible,  although  it  tends  to  prove  the  prisoner 
guilty  of  larceny.  "  Such  circumstances  constitute  a  part  of  the  trans- 
action, and  whether  they  are  perfectly  innocent  in  tiiemselves,  or  involve 
guilt,  makes  no  difference  as  to  their  bearing  on  the  main  question  w^hich 
they  are  induced  to  prove.  But  if  the  circumstances  have  no  intimate  con. 
nection  with  the  main  fact;  if  they  constitute  no  link  in  the  cliain  of  evi- 
dence; then,  supposing  them  innocent,  *  *  *  they  ought  to  be  excluded 
because  they  are  irrelevant;  but  if  they  denote  other  guilt  they  are  not  only 
irrelevant,  but  they  do  injury,  becaiise  t  !•  y  have  a  tendency  to  prejudice 
the  minds  of  the  jury;  and  for  this  additional  reason  they  ought  to  be  ex- 
cluded."   Walker  v.  Commonwealth,  1  Leigh  (Va.)  574. 


:   i 

■  vll 

.  'j 

'.'         i 

'il 

1 1 


1  '  ;^!« 


362 


AMERICAN  CRIMINAL  REPORTS. 


Evidence  th^t  one  charge<l  with  larceny  had  in  his  possession  otlier  stolen 
goods  than  there  were  specified  in  the  indictment,  taken  at  other  times 
from  other  persons,  or  that  he  is  generally  known  to  be  dishonest,  or  to  have 
committed  prior  thefts,  does  not  prove  any  necessary  connection  between 
the  defendant's  intent  and  act  in  the  commission  of  the  particular  larceny 
alleged  in  the  indictment.  The  following  cases  may  be  cited  in  support  of 
the  general  rule  above  given  and  also  as  defining  clewly  the  exceptions 
thereto  :  (Forgery)  Whiley's  Case,  2  Leach  983;  Spencer  v.  CommonwcaUh 
2  Leigh  751;  (Rape)  Williams  v.  State,  8  Humph.  585;  (Poisoning  Animals) 
Rex  V.  Mogg,  4  Carr.  &  Payne  364;  (Larceny)  Regina  v.  Oddy,  6  Brit.  Crinj. 
Cases  366;  Barton  v.  State,  18  Ohio  221;  also  2  Russ.  on  Crimes,  777. 


State  v.  Stick. 

(88  Iowa,  27.) 

Lewdness:  Indecent   exposure — Intent — Evidence  of  other  similar  acts. 

1.  On  trial  of  an  indictment  for  lewdness,  committed  by  the  willful  expos- 

ure of  defendant's  person  on  a  particular  day,  in  a  public  place,  in  tlie 
presence  of  the  prosecuting  witness,  it  is  not  error  to  admit  evidence  of 
similar  acts  by  defendant  at  the  same  place,  on  the  same  day,  and  on 
the  preceding  day,  and  in  the  presence  of  other  persons  than  the  prose- 
cuting witness,  where,  by  instructions,  the  consideration  of  sucii  evi- 
dence is  limited  to  the  determination  of  whetlier  or  not  the  act  charged 
was  willfully  done. 

2.  On  such  trial  it  is  proper,  as  bearing  on  the  question  of  intent,  to  admit 

evidence  that,  in  connection  with  one  of  such  other  acts,  defendant 
made  an  indecent  proposal  to  a  lady. 

Appeal  from  District  Court,  Appanoose  County;  "W.  I.  Biibb, 
Judge. 

The  defendant  was  indicted  for  lewdness.  He  pleaded  not 
guilty,  was  convicted,  and  sentenced  to  the  county  jail,  and 
appeals. 

J.  A.  Elliott  and  Geo.  D.  Porter,  for  appellant. 
John  F.  Stone,  Att'y  Gen.,  TAos.  A.   Cheshire  and  C.  F. 
Howell,  for  the  State. 

KiNNE,  J.  1.  The  defendant  was  indicted  for  the  crime  of 
lewdness,  committed  on  March  20,  1892,  by  willfully  exposing 
his  person  (private  parts)  in  a  public  place,  in  plain  view  of  a 
public  thoroughfare  where  people  were  passing.    The  case  is 


STATE  V.  STICE. 


S63 


submitted  to  us  upon  a  complete  transcript,  but  without  argu- 
ment on  behalf  of  either  party.    The  crime  for  which  defend- 
ant was  indicted  and  convicted  is  alleged  to  have  been  com- 
mitted on  Sunday,  March  20,  1892,  in  the  presence  of  a  young 
lady,  whose  name  need  not  be  mentioned.    On  the  trial  the 
court  admitted  evidence  of  acts  of  a  similar  character  com- 
mitted by  the  defendant  at  the  same  place,  on  the  same  day, 
and  also  on  the  preceding  day,  which  were  committed  in  the 
presence  of  parties  other  than  the  prosecuting  witness.    It  is 
insisted  that  this  evidence  was  incompetent.    The  general  rule 
is  that  evidence  of  distinct  and  separate  offenses  is  not  admis- 
sible to  establish  the  defendant's  guilt  of  the  particular  offense 
charged.    There  are  certain  well  recognized  exceptions  to  this 
rule,  as  in  cases  where  knowledge  and  intent  are  necessary  ele- 
ments of  the  offense  charged.     1  Greenl.  Ev.  (15th  Ed.),  §  53, 
note;  Eosc.  Crim.  Ev.,  pp.  90-94;  Whart.  Crim.  Ev.,  §  44;  2 
Rice  Ev.,  pp.  521, 522;  Com.  v.  Sawidle,  141  Mass.  140;  Thomas 
V.  State,  103  Ind.  419.    In  the  class  of  cases  mentioned  it  is  held 
that,  as  such  evidence  is  admissible  to  show  guilty  intent  in 
duing  the  act  charged,  it  is  no  ground  of  objection  thereto 
that  it  may  also  show  that  the  defendant  is  guilty  of  another 
crime.    This  exception  to  the  general  rule  has  often  been  rec- 
offnized  bv  this  court.    State  v.  Walters,  45  Iowa  389;  State  v. 
Jamison,  74  Iowa,  617;  State  v.  Saunders,  68  Iowa  370;  State 
V.  Kline,  54  Iowa  183.    The  evidence  of  other  acts  introduced 
by  the  state,  showed  that  both  before  and  after  the  commis- 
sion of  the  offense  with  Avhich  the  defendant  was  charged,  he 
had  made  like  exposures  of  his  person  to  young  ladies.    Surely 
such  facts  are  competent  to  establish  the  claim  that  the  offense 
for  which  he  was  on  trial  was  designedly  committed.    T'nder 
the  statute  it  is  incumbent  upon  the  state  to  show  that  the  act 
was  designedly  done — that  is,  intentionally — and  we  know  of 
no  better  way  to  establish  that  fact  than  was  pursued  in  this 
case.    The  jury  were  instructed  to  consider  the  evidence  of 
these  acts  for  the  sole  purjxwe  of  determining  whether  the 
public  exposure  made  by  the  defendant  of  his  person,  with 
which  he  was  charged,  was  done  willfully  and  designedly. 
In  connection  with  one  of  these  other  acts,  it  appears  that 
defendant  also  made  an  indecent  proposal  to  the  young  lady. 
This  was  likewise  admissible  as  tending  to  show  the  intent 
with  which  he  committed  the  act  for  which  he  w^as  on  trial.    , 


11 


364 


AMERICAN  CRIMINAL  REPORTS. 


2.  Error  is  assigned  in  the  giving  and  refusing  of  instruc- 
tions. We  have  examined  the  instructions  given  and  those 
refused,  and  discover  no  error.  The  court's  charge  was  full 
and  clearly  set  forth  the  law  applicable  to  the  case. 

3.  It  is  said  that  the  verdict  is  contrary  to  the  evidence. 
As  is  our  duty  in  such  cases,  we  have  read  the  evidence  with 
care,  and  have  fully  examined  the  entire  record,  and  discover 
no  error.  The  record  impresses  us  with  the  conviction  tliat 
the  defendant  had  a  fair  trial,  that  the  doubts  were  resolved 
in  his  favor  by  the  court  below,  and  the  verdict  was  justified 
by  the  evidence. 

The  judgment  below  must  be  affirmed. 

Note. — What  constitutes.— The  phrase  "  open  and  gross  lewdness"  is  not 
equivalent  to  the  phrase  "gross  lewdness  in  an  open  plafce."  The  word 
"  open"  has  no  reference  to  place  at  all,  nor  to  number  of  people.  It  is 
used  simply  to  define  a  quality  of  the  act  of  lewdness.  It  is  "open  lewd- 
ness" as  opposed  to  "secret  lewdness."  It  defines  the  same  act,  regardless 
of  whether  it  is  committed  in  presence  of  one  or  of  many.  The  offense  may 
be  committed  by  the  intentional  act  of  exposing  one's  person  indecently,  in 
the  presence  of  one  person,  to  whom  it  is  offensive,  as  well  as  in  the  i)res- 
enceof  many  persons.  Com.  v.  Wardell,  128  Mass.  54;  85  Am.  Rep.  357; 
Com.  V.  Lambert,  12  Allen  177;  Com.  v.  Parker,  4  Allen  818;  Fowler  v.  State, 
5  Day  81;  State  v.  Millard,  18  Vt.  574;  46  Am.  Dec.  170. 

It  could  not  change  the  quality  of  the  a<:tthat  it  was  committed  in  the 
presence  of  a  child  of  tender  years,  too  innocent  to  be  offended  by  it.  The 
benignity  of  the  law  would  neither  presume  nor  permit  the  consent  of  such 
a  child  to  such  an  act.  Fowler  v.  State,  supra;  Orisham  v.  State,  2  Yerg. 
589;  State  V.  Millard,  supra:  46  Am.  Dec.  170;  Com.  v.  Wardell,  128  Mass. 
52;  35  Am.  Rep.  357. 

Testimony  necessary  to  conricf.— Ordinarily,  the  testimony  of  one  com- 
petent witness  is  sufficient  to  sustain  a  conviction.  There  are  crimes  for 
which  it  is  not  competent  to  convict  upon  the  uncorroborated  testimony  of 
one  witness.  There  are  exceptions  from  the  general  rule,  created  either 
by  statute,  or  some  established  rule  of  the  common  law.  Exce|<  in  Uuve 
excepted  cases,  the  testimony  of  one  witness  answers  at  law.  Even  tlie 
testimony  of  an  accomplice  is  sufficient  {TJloek  v.  State,  59  Wis.  471),  and 
thateven  in  a  capital  case.  United  States  v.  Neverson,  1  Mackey  152;  United 
States  V.  Bicksler,  Id.  841.  The  weight  of  the  evidence  is  for  the  jury.  If 
they  are  satisfied  by  it  beyond  a  reasonable  doubt,  it  is  legally  sufficient. 
Even  in  cases  of  rape,  there  is  no  inflexible  rule  which  requires  corrobora- 
tion of  the  complainant's  testimony.  Such  corroboration  is  expected,  and 
its  absence  seriously  impairs  the  case  of  the  prosecution.  But  the  law 
ttself  is  satisfied  with  such  corroboration  as  is  practically  procurable;  else 
many  crimes  could  be  perpetrated  with  impunity.  Whart.  Crim.  L.,  0th 
Ed.,  565. 

It  is  to  a  great  extent  in  the  discretion  of  the  trial  court,  in  most  cases, 
whether  corroboration  shall  be  required,  and  how  much.    Ingalls  v.  State, 


nm 


STATE  V.  BOWKER. 


365 


48  Wis.  649;  B'ock  v.  State,  mpra.  Under  the  direction  of  the  court,  an 
intelligent  jurj'  are  not  likely  to  err  in  giving  undue  credit  and  force  to  the 
tjgtimony:  if  that  should  happen,  it  is  always  within  the  power  of  the  court 
to  correct  such  a  mistake  by  a  new  trial. 

Admimhility  of  testimony  of  child,— In  1  East  P.  C.  441,  it  is  said:  "  In- 
deed," adds  Mr.  Justice  Blackstone  (4  Bl.  Com.  214),  '*  it  seems  now  to  be 
settled  that  in  these  cases  (offenses  against  chastity)  infants  of  any  age  are  to 
be  heard,  and  if  they  have  an  idea  of  an  oath,  to  be  also  sworn."  King  v. 
Brazier,  1  Leach  C.  C.  199;  Brazier's  Case,  1  East  P.  C.  448. 


State  v.  Bowkeb. 

(26  Or.  309.) 

MANSLAUaHTER:  Abortion — Evidence — Deposition  of  state's  witness. 

1.  The  conviction  of  one  of  two  persons  jointly  indicted  for  manslaughter 

committed  by  means  of  abortion  is  not  evidence  tending  to  show  the 
other's  guilt. 

2.  Const.,  art.  1,  §  11,  providing  that  in  criminal  prosecutions  the  accused 

shall  have  the  right  "to  meet  the  witnesses  face  to  face," does  not 
render  inadmissible  a  deiiosition  of  a  witness  for  the  state,  taken  ii>  de- 
fendant's presence,  and  to  the  taking  of  which  he  expressly  consented 
for  the  purpose  of  obtaining  a  continuance. 

Appeal  from  Circuit  Court,  Multnomah  County;  M.  G. 
Munly,  Judge. 

Charles  A.  Bowker  was  convicted  of  manslaughter,  and  ap- 
peals.   Reversed. 

E.Mendenhall  and  J.  L.  3L)Gi.ll,  for  appellant. 
Geo.  E.  Chamberlain,  Attorney-General,  and  W.  T.  Hume, 
Dist.  Attorney,  for  the  State. 

Opinion  by  Bean,  C.  J.:  The  defendant  was  jointly  indicted 
with  one  Mrs.  Vann  for  the  crime  of  manslaughter,  alleged  to 
have  been  committed  by  means  of  a  criminal  abortion  upon 
one  Helen  Wilson,  from  the  effects  of  which  she  died.  The 
defendants  demanded  separate  trials,  and,  Mrs.  Vann  being 
first  tried  and  convicted,  her  conviction  was  given  in  evidence 
by  the  state  on  trial  of  the  present  defendant.  Apprehending 
an  unfavorable  inference  from  this  evidence,  and  desiring  to 
avert  any  injurious  consequence  which  might  result  to  the  de- 
fendant therefrom,  his  counsel  requested  the  court  to  instruct 


VM 


I 


866 


AMERICAN  CRIMINAL  REPORTS. 


the  jury  that  "  it  does  not  follow  that  because  the  defendant 
Vann  has  been  convicted  of  the  crime  charged,  the  defendant 
C.  A.  Bowker  is  guilty."  This  the  court  gave,  with  the  fol- 
lowing  qualification  :  "But  this  fact  may  be  taken  into  consid- 
eration  with  the  other  circumstances  of  the  case."  The  giving 
of  the  instruction  as  thus  modified  is  assigned  by  the  defense 
as  error.  If  we  do  not  misapprehend  the  vie\E.Df  the  trial 
court,  as  indicated  by  this  instruction,  it  was  of  the  opinion 
and  intended  the  jury  should  understand,  that  the  conviction 
of  Mrs.  Vann  was  competent  evidence  tending  to  show  defend- 
ant's guilt.  This  must  have  been  what  it  meant,  or  the  in- 
struction requested  by  the  defendant  would  not  have  been 
modified  in  the  manner  stated.  The  court  evidently  was  of 
the  opinion,  and  intended  to  instruct  the  jury,  that  while  die 
guilt  of  the  defendant  did  not  follow  as  a  necessary  conse- 
quence from  the  conviction  of  his  co-defendant,  yet  they  niigiit 
properly  consider  such  conviction,  along  with  the  other  evi- 
dence in  the  case,  as  tending  to  show  his  guilt.  But  in  this  the 
court  was  in  grave  error. 

Although  jointly  indicted,  the  crime  with  which  the  defend- 
ants were  charged  was  in  its  nature  several,  and  one  of  them 
could  have  been  acquitted,  and  the  other  convicted.  Compe- 
tent and  satisfactory  evidence  against  one  was  not  necessarily 
so  as  against  the  other;  and  no  rule  of  law  is  better  settled 
than  that,  where  two  or  more  persons  are  jointly  charged  in 
the  same  indictment  with  the  commission  of  a  crime  which  is 
in  its  nature  several,  each  must  be  tried  upon  the  evidence 
legally  tending  to  show  his  guilt  or  innocence,  without  refer- 
ence to  the  disposition  of  the  case  against  his  co-defendant,  and 
the  confession  or  conviction  of  one,  either  by  plea  of  guilty  or 
upon  the  testimony,  can  not  be  used  as  criminating  evidence 
against  the  other.  Whart.  Cr.  Ev.  §  609;  Klein  v.  People,  31 N. 
y.  229;  PeopU  v.  McQuade,  110  K  Y.  284;'  State  v.  Weasel,  30 
La.  Ann.  919;  Rufer  v.  State,  25  Ohio  St.  464;  People  v.  Stevens, 
47  Mich.  411;  Zyon  v.  State,  22  Ga.  399.  Under  any  other  rule 
the  guilt  of  a  defendant  jointly  indicted  with  another,  if  he 
should  happen  to  be  tried  subsequent  to  his  co-defendant, 
might  depend  upon  the  result  of  a  trial  over  which  he  had  no 
control,  to  which  he  was  not  a  party,  and  in  which  he  had  no 
right  to  appear  or  make  a  defense.  The  district  attorney 
argued  that  all  the  court  meant  by  the  instruction  complained 


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^^ 


STATE  V.  BOWKER. 


807 


of  was  that  the  conviction  of  Mrs.  Vann,  who  was  a  witness 
for  the  state,  might  be  considered  by  the  jury  as  evidence  af- 
fecting her  credibility.  But  we  are  unable  to  so  understand 
the  language  used.  The  court  was  not  instructing  the  jury  on 
the  weight  of  the  evidence,  or  the  credibility  of  witnesses,  at 
the  time  this  instruction  was  given,  but  as  to  the  effect  of 
Mrs.  Vann's  conviction  as  an  element  in  the  case  against  the 
defendant;  and  the  jury  must  have  understood  the  instruction 
to  authorize  them  to  consider  such  conviction  as  evidence  tend- 
ing to  show  his  guilt.  This,  in  our  opinion,  was  error,  for 
which  the  cause  must  be  reversed. 

2.  There  being  evidence  on  the  trial  from  which  the  jury 
might  properly  find  that  the  defendant  and  Miss  Wilson 
had  been  criminally  intimate,  defendant's  counsel  requested 
the  court  to  instruct  the  jury  that  "  even  if  the  jury  find  that 
the  defendant  C.  A.  Bowker  had  criminal  intercourse  with 
Helen  Wilson,  you  can  not  convict  him  on  the  charge  in  the 
indictment,"  which  the  court  gave;  adding  thereto,  however, 
"  but  the  fact  that  the  defendant  had  criminal  intercourse  with 
the  deceased  is  a  fact  to  be  taken  into  consideration,  together 
with  the  other  circumstances  of  the  case,  in  determining  the 
question  of  guilt."  Upon  the  same  matter  the  defendant's 
counsel  also  requested  the  court  to  instruct  the  jury  that  "even 
if  the  jury  find,  beyond  a  reasonable  doubt,  that  before  Helen 
Wilson  went  to  Mrs.  Vann's  to  have  the  alleged  criminal  op- 
eration performed,  she  and  the  defendant  Bowker  had  sexual 
intercourse,  but  have  a  reasonable  doubt  as  to  whether  the  de- 
fendant sent  or  had  Helen  Wilson  go  there  for  that  purpose, 
you  must  find  the  defendant  not  guilty."  The  court  refused 
this  instruction  as  asked,  but  gave  it  with  this  qualification  : 
"But  the  circumstance  that  Helen  Wilson  and  the  defendant 
had  sexual  intercourse,  as  I  stated  before,  is  a  question  which 
you  have  a  right  to  take  into  consideration,  together  with 
other  testimony  in  the  case,  in  making  up  your  verdict." 
We  are  of  the  opinion  that  each  of  the  instructions  above  re- 
ferred to,  as  given  by  the  trial  court,  is  obnoxious  to  the  ob- 
jection made  by  defendant's  counsel  that  they  assume  as  a 
fact  the  criminal  intimacy  of  the  defendant  and  Helen  Wilson. 
This  was  an  important  question  in  the  case,  and,  while  there 
was  ample  evidence  from  which  the  jury  could  have  found 
auch  relation  to  have  existed,  it  was  not  an  admitted  fact;  and 


■  \ 


808 


AMERICAN  CRIMINAL  REPORTS. 


the  question  was  therefore  for  the  jury,  and  not  the  court. 
Language  of  this  kind,  when  used  by  a  court  before  a  jury,  in 
reference  to  a  contested  question  of  fact  in  the  case,  is  always 
higlily  improper.  "  The  jury,  under  our  system,"  says  Stone, 
J.,  "  is  the  only  tribunal  which  passes  on  controverted  facts  in 
courts  of  law;  and  until  the  verdict  is  rendered,  no  such  fact 
is  established,  or  shown  to  exist."  McKenzie  v.  Bank,  28  Ala. 
606;  Proff.  Jury,  §  310;  2  Thomp.  Trials,  §  2295. 

3.  The  instruction  that  to  warrant  a  conviction  upon  cir- 
cumstantial evidence  the  law  does  not  require  that  the  jury 
"  should  be  satisfied,  beyond  a  reasonable  doubt,  of  each  link 
in  the  chain  of  circumstances  relied  upon  to  esrablisl-  the  de- 
fendant's guilt,"  has  boen  criticised,  and  in  some  instances  lieKl 
reversible  error.  Graves  v.  People,  IS  Colo.  170;  32  Pac.  03; 
Clare  v.  People,  9  Colo.  122;  Marion  v.  State,  16  Neb.  349; 
Leonard  v.  Territory,  2  Wash.  T.  3S1;  2  Thomp.  Trials, 
§  2512  et  seq.  And  so  also  with  the  instruction  that  a  juror  "is 
not  at  liberty  to  disbelieve  as  a  juror  what  he  believes  as  a 
man."  People  v.  Johnson,  140  N.  Y.  350;  35  N.  E.  604;  Cims 
V.  State,  132  Ind.  65;  31  N.  E.  473;  Siberrt/  v.  State  (Ind.  Sup.), 
33  N.  E.  681.  We  do  not,  however,  deem  it  important  or  nec- 
essary at  this  time  to  pass  upon  the  propriety  or  effect  of  these 
instructions,  as  error,  if  any,  in  either  or  both,  can  be  avoitled 
on  another  trial,  which  from  'vhat  has  already  appeared,  must 
be  ordered. 

4.  But,  in  order  to  eliminate  a  disputed  question  likely  to 
present  itself  in  a  new  trial,  we  will  dispose  of  the  alleged  error 
based  upon  the  overruling  by  the  trial  court  of  defendant's 
objection  to  the  deposition  of  Mrs.  Vann.  The  record  dis- 
closes that  on  the  hearing  of  an  application  by  the  defendant 
for  the  postponement  of  the  trial  because  of  the  absence  of  a 
witness,  it  appeared  from  the  statement  of  the  district  attorney 
that  Mrs.  Vann,  who  was  then  seriously  ill  in  the  hospital,  was 
about  to  undergo  a  surgical  operation,  from  the  effects  of  which 
she  might  not  recover,  or  be  physically  able  to  attend  the  trial, 
if  it  should  be  postponed;  and  for  this,  among  other  reasons, 
he  objected  to  a  continuance.  But  the  defendant  expressly 
consenting,  in  open  court,  to  the  taking  of  Mrs.  Vann's  depo- 
sition, the  case  was  postponed,  under  the  provisions  of  section 
1345  of  the  Code,  until  a  future  day.  The  deposition  of  Mrs. 
Vann  was  subsequently  taken,  in  the  presence  of  the  defendant 


jury, m 
always 
Stone, 
facts  in 
ich  fact 
28  Ala. 


STATE  V.  BOWKER. 


369 


and  his  counsel,  and  on  the  trial  offered  in  evidence  by  the 
state,  she  having  died  in  the  meantime.  The  object'on  of  de- 
fendant to  this  deposition  is  based  upon  the  contention  that  he 
had  a  constitutional  right,  which  he  could  not  waive,  to  meet 
t!ie  witnesses  against  him  face  to  face  on  the  trial,  in  the  pres- 
ence of  the  court  and  jury.  The  constitution  of  this  state  pro- 
vides that  in  all  criminal  prosecutions  the  accused  shall  have 
the  right  "  to  meet  the  witnesses  face  to  face."  Article  1, 
§11.  But  this  language  does  not  require  that  in  all  cases  he 
shall  be  confronted  with  the  witnesses  on  a  pending  trial.  The 
richt  secured  by  the  constitution  to  the  defendant  is  "  to  meet 
the  witnesses  face  to  face,"  and  this  requirement  is  satisfied 
when,  in  some  stage  of  the  case  against  him,  in  a  proceeding 
authorized  by  law,  he  is  confronted  with  the  witness,  and  given 
an  opportunity  to  cross-examine  him.  The  defendant  in  this 
case  did  meet  the  witness  face  to  face  at  the  time  her  deposi- 
tion was  taken,  and  cross-examined  her,  so  that  there  was  no 
infringement  of  the  constitutional  guaranty.  "Whether  a  de- 
fendant in  a  criminal  prosecution  can  be  required,  without  his 
consent,  to  submit  to  the  taking  of  a  deposition  of  a  witness 
against  him,  it  is  not  now  necessary  for  us  to  consider,  for  no 
such  question  is  presented  by  this  record.  But  all  the  authori- 
ties agree  that  he  may  waive  the  right  to  be  confronted  with 
the  witnesses  on  the  trial,  and  some  of  the  cases  hold  that  he 
may  waive  this  right  altogether.  1  Bish.  Cr.  Proc.  1099; 
Cooley,  Const.  Lim.  *318;  S/tular  v.  State,  105  Ind.  298;  4  N. 
E.  870;  People  v.  Penhollow,  5  N".  Y.  Cr.  R.  41;  Williams  v. 
State,  01  Wis.  292;  21  K  W.  56;  State  v.  Poison,  29  Iowa  133; 
State  V.  WiKjner,  78  Mo.  644.  We  are  of  the  opinion,  there- 
fore, that  there  was  no  error  in  permitting  the  deposition  of 
Mrs.  Vann  to  be  offered  and  used  as  evidence  on  the  trial. 

There  are  many  other  assignments  of  error  in  the  record, 
but,  as  they  may  not  arise  on  another  trial,  we  shall  pass  them 
at  this  time.    It  follows  from  what  has  already  been  said  that 
the  judgment  must  be  reversed  and  a  new  trial  ordered. 
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870  AMERICAN  CRIMINAL  REPORTS. 

Com.  v.  Lehigh  Valley  R.  Co. 

(165  Pa.  162.) 

Misdemeanor:  Corporation  indictable  for— Judgment  by  default—Com- 
mon law  of  the  United  States. 

1,  The  common  law  of  one  of  the  United  States  includes  the  long  recog- 

nized  judicial  practice  of  that  state,  whether  it  was  ever  known  in 
England  or  not. 

2.  Tlio  practice  of  rendering  judgment  by  default  on  defendant's  failure 

to  appear,  which  apparently  originated  in  usage,  having  been  sanc- 
tioned by  frequent  statutory  recognition  and  having  iMion  extended 
in  its  operation  from  time  to  time  by  judicial  application,  must  be 
recognized  as  part  of  the  common  law  of  Pennsylvania. 
8.  A  judgment  by  default  against  a  corporation  indicted  for  misdemeanor 
may  be  rendered  on  its  failure  to  appear,  by  virtue  of  tlie  common 
law  of  Pennsylvania,  which  has  established  tliis  practice  in  civil 
cases,  notwithstanding  the  lack  of  any  precedents  in  criminal  cases, 
since  personal  api^earance  of  the  defendant  is  no  more  necessary  in 
case  of  misdemeanor  than  in  a  civil  action. 

Appeal  by  the  Commonwealth  from  a  judgment  of  the  Court 
of  Quarter  Sessions  for  Luzerne  County,  refusing  to  enter  judg- 
ment for  default  in  a  proceeding  against  defendant  for  alleged 
maintenance  of  a  nuisance.    Reversed. 

The  facts  are  stated  in  the  opinion. 

John  M.  Garman  and  C.  Fmnh  Bohan,  for  appellant. 
Wheaton,  Darling  <&  Woodward,  for  appellee. 

Mitchell,  J.,  delivered  the  opinion  of  the  Court. 

It  is  settled  and  unquestionable  that  corporations  may  be 
indicted  at  common  law,  and  it  necessarily  follows  that 
they  may  be  brought  into  court  by  compulsion,  if  necessary, 
for  the  law  is  never  powerless  to  enforce  what  it  commands. 
Statutes  may  be  imperfect  and  proceedings  under  them  for  that 
reason,  may  be  abortive,  but  it  is  a  settled  rule  of  the  common 
law  that  there  is  no  right  without  a  remedy.  The  question 
before  us,  therefore,  is  really,  what  is  the  proper  form  of 
remedy  in  the  case  of  a  corporation  indicted  for  misdemeanor, 
and  refusing  and  neglecting  to  appear  ?  By  the  common  law 
of  England,  prior  to  the  settlement  of  this  country,  an  appear- 
ance by  the  defendant  was  indispensable,  both  in  civil  and 
criminal  cases.    For  want  of  it,  proceedings  come  to  a  per- 


COM.  V.  LEHIGH  VALLEY  R.  CO. 


371 


mancnt  stop.  The  end  sought  was  commonly  attained  indi- 
rectly by  process  of  outlawry,  by  which,  in  civil  actions,  after 
the  outlaw's  goods  had  been  forfeited  to  the  irown,  satisfaction 
thereout  was  awarded  to  the  plaintiff,  but  ihe  action  itself 
could  not  proceed  to  judgment.  3  Stephen  Or;n,,  533;  Tilgh- 
niiiu,  Ch.  J.,  in  Downey  v.  Farmers  tfc  M.  Bunk  of  Green  castle, 
13  Serg,  &  R.  288.  In  criminal  cases,  of  course,  the  difficulty 
seldom  arose,  as  the  defendant  was  usually  in  arrest  and  his 
corporal  appearance  being  thus  secured,  the  contention  was 
deferred  till  the  next  step  in  the  proceedings,  when  a  contu- 
macious prisoner  stood  mute  and  refused  to  plead.  Even  then 
the  case  was  halted  and  resort  was  had  to  thQjyeine  forte  et 
(lure  to  obtain  a  plea.  Sir  James  Stephen  appears  to  be  of  the 
opinion  that  this  practice  arose  from  the  different  modes  of 
trial  in  criminal  cases,  when  the  ordeal  was  usual  and  the  jury 
exceptional,  only  adopted  on  the  election  of  the  prisoner.  1 
llist.  Crim.  L.,  p.  298.  However  this  may  be,  it  is  unques- 
tionaT)le  that  the  necessity  of  an  appearance  as  well  as  a  plea 
was  inexorable.  And  the  reason  of  this  seems  to  me  to  lie 
in  the  fundamental  idea  of  all  common-law  actions  that 
must  be  developed  upon  a  defined  issue.  Without  parties  in 
court  there  could  be  no  lis  mota;  and  without  pleas,  no  issue; 
and  therefore  no  trial. 

The  difficulty,  though  insuperable,  was  altogether  technical. 
Hence,  appearance  by  attorney  was  t'le  first  solution,  and  satis- 
fied the  requirements  of  ordinary  cases;  for  it  is  to  be  remem- 
bered that  the  usual  writ  in  the  commencement  of  actions  was 
the  capias.  And  the  defendant  was  in  court,  in  custody  either 
of  the  sheriff  or  of  his  bail.  The  failure  to  appear  was  there- 
fore comparatively  of  rare  occurrence,  and  this  rarity  in  large 
measure  accounts  for  the  tardiness  of  the  invention  or  adop- 
tion of  the  remedy  of  judgment  by  default.  Corporations 
not  being  amenable  to  a  capias^  the  practice  in  England,  until 
altered  by  Stat.  7  &  8,  Geo.  IV,  Chap.  71,  §  5,  was  to  compel 
appearance  by  venire  facias  distringas.  Reg.  v.  Birmingham 
and  G.  R.  Co.  reported  in  its  successive  stages  in  9  Car.  and 
P.  469,  1  Gale  &  D.  457,  and  2  Gold  &  D.  236.  A  venire 
facias  ad  respondendum  is  in  fact  a  summons.  "  The  practice 
*  *  *  was  for  the  sheriff  to  whom  the  writ  was  delivered 
to  make  out  a  warrant  or  summons  to  his  officer,  who  there- 
upon summoned  the  defendant  by  delivering  to  him  a  copy    * 


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AMEUICAN  CRIMINAL  REPORTS. 


*  *  and  upon  tlio  slioriff's  return  of  the  names  of  the  smn- 
nioners,  if  the  defciulant  did  not  appear,  a  tfi«t/'hiyas  issuod." 
1  Tidd  Pr.  155.  As  no  caj)i«M  lay,  it  was  the  only  motlKMl  of 
proceeiling  against  iHjers  of  the  realm,  corporations  and  liuii- 
dreders  on  the  statutes  of  hue  and  cry.  Id.  112.  *'  The  proper 
process  on  an  indictment  for  any  potty  misdemeanor  is  a  writ 
of  veil!  re  facias  which  is  in  the  nature  of  a  summons  to  cause 
the  party  to  appear.*  Tomlin's  Jac.  Law  Diet.,  title  Process,  II. 

Wo  have,  therefore,  to  consider  the  effect  in  Pennsylvaiiiii 
of  a  failure  to  appear  after  duo  service  of  a  summons.  The 
ordinary  result  is  to  render  the  party  liable  to  a  judgment  by 
default;  but  the  learned  judge  below,  being  of  opinion  tliat 
such  judgment  rests  entirely  on  statute,  and  the  act  of  June 
13,  183G,  §  33  (Pub.  Laws,  578),  not  apjjlying  to  i)roceediug  in 
indictment,  refused  to  enter  judgment  in  the  present  case. 
The  act  of  1836  was  one  of  the  consolidated  statutes  reijortt-d 
by  the  commissioners  appointed  under  the  resolution  of  Alarch 
23,  1830  (Pub.  Laws,  1821>-30,p.  408),  to  revise  the  Civil  Code, 
and  introduces  no  new  practice  in  regard  to  judgments  by 
default  for  want  of  appearance.  The  explanatory  remarks  of 
the  commissioners  on  the  sections  concerned,  make  no  reference 
to  any  change.  See  report  in  2  Parke  and  Johns.  Dig.,  title 
Judiciary,  p.  804.  In  fact,  the  practice  w'as  coeval  with  the 
commonwealth  and  even  antedated  it.  In  the  record  of  tlie 
court  at  Upland,  in  Pennsylvania  (Memoirs  of  the  Historical 
Society  of  Pennsylvania,  Vol.  7),  are  numerous  instances  of 
such  judgments.  At  the  session  of  March  13,  1876-77  (I/ilm 
V.  Olson),  it  is  recorded :  "  The  defendant  remaining  absent,  tlie 
court  does  order  that  the  said  defendant  apjiear  at  the  next 
court  dav  to  defend  his  said  fact,  or  in  case  of  further  default, 
judgment  to  pass  against  him  according  to  law  and  merit." 
Page  47. 

In  Addams  v.  Troy,  the  defendant  being  in  default  and  the 
plaintiff  making  the  justness  of  his  debt  appear,  the  court 
ordered  judgment  to  be  entered  against  the  defendant  accord- 
ing to  plaintiff's  declaration.  Page  83.  In  Bacon  v.  B'dlap, 
the  defendant  being  three  times  called  did  not  appear,  and  the 
action  having  been  continued  three  court  days,  in  which  time, 
notwithstanding  he  had  due  notice  and  did  promise  to  appear, 
he  hath  not  appeared,  and  the  plaintiff  pressing  for  judgment, 
the  court,  thereupon  examining  the  case,  does  think  fit  to  pass 


l'.(M 


Mtf 


COM.  V.  LEHIOH  VALLEY  R.  CO. 


373 


jiulgiTicnt  against  the  defendant.  Page  139.  These  examples, 
from  the  record  of  the  earliest  court  administering  English  huv 
on  the  soil  of  Pennsylvania,  throw  a  strong  light  on  the  action 
of  the  colonists  under  Penn's  charter,  next  to  be  noticed.  In 
the  sixth  article  of  the  laws  agreed  upon  in  England,  uniler 
the  form  of  government  promulgated  by  Penn,  it  was  declared 
that  in  all  courts  all  persons  of  all  persuasions  may  freely 
appear  in  their  own  way  and  personally  plead  their  cause; 
that  the  party  complained  against  shall  be  summoned  no  less 
than  ton  days  before  the  trial,  and  before  the  complaint  of 
any  person  shall  be  received,  he  shall  solemnly  declare  in  court 
tiiat  he  believes  in  his  conscience  his  cause  is  just.  Duke  of 
York's  Laws,  p.  100.  In  the  laws  made  at  an  assembly  held 
at  Philadelphia  March  10,  1683,  Chap.  66,  the  foregoing  was 
re-enacted,  with  the  notable  addition  to  the  sentence  last  quoted 
above,  that  "  if  the  party  complained  against  shall,  notwith- 
standing, refuse  to  appear,  the  plaintiff  shall  have  judgment 
against  the  defendant  by  default."  Id.  p.  128.  I  have  not  been 
able  to  discover  in  the  time  and  with  the  books  at  my  command 
how  far  this  simple  and  effective  mode  of  reaching  a  legal  as  well 
as  just  result  agreeing  with  the  practice  already  in  use  in  the  ter- 
ritory under  the  government  of  the  Duke  of  York's  charter  as 
shown  by  the  record  of  the  Upland  court,  was  an  original  inven- 
tion of  the  colonists,  or  was  borrowed,  adapted  or  enlarged 
from  some  special  or  local  practice  in  England.  The  latter 
would  seem  more  probable,  not  only  from  the  analogy  in  the 
way  in  which  the  actions  of  assumpsit  and  replevin  and  other 
common  law  remedies  were  enlarged  and  adapted  to  new  useful- 
ness in  Pennsylvania,  but  also  from  the  fact  that  the  judg- 
ment by  default  came  into  use  about  the  same  time  in  other 
colonies,  though  Judge  Bell,  who  delivered  the  learned  opinion 
jn  Boston  C.  iib  M.  Railroad  v.  State,  32  N.  H.  215,  231,  regarded 
it  as  an  original  invention  in  New  England.  But  whatever  its 
origin  the  practice  has  continued  to  the  present  time. 

The  act  of  1683  (chapter  66)  supra,  was  declared  one  of  the 
fundamental  laws  of  the  province  (Duke  of  York's  Laws, 
p.  151);  was  abrogated  by  the  King  and  Queen  in  Council, 
1003;  was  put  in  the  petition  of  right  (Id.  200)  and  passed 
through  the  usual  vicissitude  of  re-enactment  and  abrogation 
familiar  to  us  in  the  contests  between  the  early  assemblies  and 
the  royal  authority.    It  has  been  with  substantial  identity  the 


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874 


AMERICAN  CRIMINAL  REPORTS. 


law  of  the  state  from  the  earliest  day  to  the  present.  See 
Acts  1710  (Duke  of  York's  Laws,  337);  Acts  1715  (Duke  of 
York's  Laws,  367);  Acts,  20th  March,  1721-25  (1  Dallas  Laws 
223;  1  Smith's  Laws  164;  and  Purdon's  Dig.  1830,  title  Arrest, 
p.  57),  when  this  act  is  given  as  the  statute  in  force  prior  to 
the  passage  of  the  act  of  1836.  None  of  these  statutes  apply 
in  terms,  or  perhaps  by  implication,  to  cases  of  indictment. 
The  aci,  of  May  31, 1718, "  for  the  advancement  of  justice,  and 
more  certain  administration  thereof"  (1  Smith's  Laws  llfi). 
provides  that  if  any  person  indicted  for  one  of  certain  capital 
felonies  named  shall  not  appear,  a  capias  shall  be  issued,  and  if 
the  party  be  not  found,  proclamation  and  outlawry  follow  in 
prescribed  course.  The  act  of  September  23,  1791  (3  Dallas' 
Laws,  115),  also  limits  outlawry  to  a  few  of  the  more  serious 
felonies;  and  the  existing  act  of  31st  March,  1860  (Pub.  Laws, 
447),  is  substantially  a  re-enactment  of  the  act  of  1791.  For 
the  lesser  felonies,  and  for  all  misdemeanors,  therefore,  the 
))rocess  of  outlawry  was  practically  abolished  by  these  statutes, 
and,  if  a  capias  under  the  general  power  of  the  courts  was  not 
effective,  or  not  applicable,  as  was  the  case  in  regard  to  cor- 
porations, there  was  no  statutory  substitute  for  the  ancient 
])rocess  of  a  venire  facias  ad  resjyotidendum  and  flistriiKjas. 

But,  as  already  seen,  the  whole  object  of  the  venire  and  dis- 
tress infinite,  was  to  secure  an  appearance,  and  the  whole  ne- 
cessity for  an  appearance  was  to  get  over  the  technical  diili- 
culty  in  bringing  the  case  to  issue.  The  object  and  the  necessity 
were  the  same  in  the  civil  and  criminal  courts.  The  older  rem- 
edies have  fallen  entirely  into  disuse  in  the  civil  courts  and 
the  erd  sought  is  now  attained  by  a  judgment  entered  l>y 
default.  The  presence  of  the  defendant  is  not  required  upon 
the  trial  of  misdemeanors,  and  the  necessity  of  an  appearance 
is  therefore  as  barely  technical  as  in  civil  casf^s.  There  is  no 
difficulty  in  applying  the  same  remedy,  and  we  ice  no  reason 
why  the  courts  should  not  recognize  the  change  also  in  crim- 
inal cases,  without  express  statute,  by  force  of  the  common  law 
of  Pennsylvania.  This  was  the  result  reached  by  the  Supreme 
Court  of  New  Hampshire  in  Boston  C.  tfc  M.  Railroad  v.  State, 
32  X.  n.  215;  and  the  decision  was  approved  and  followed  by 
the  Supremo  Court  of  North  Carolina  in  State  v.  Western  JV. 
C.  IL  Co.,  89  N.  C.  584.  In  the  former  case  it  was  said  by 
Bell,  J.:    "  The  foundation  of  the  English  common  law,  witli 


W! 


■     ; 


COM.  V.  LEHIGH  VALLEY  R.  CO. 


375 


infinite  niceties,  was  nothing  more  than  usage,  and  usage  here 
holds  as  high  a  place  in  our  esteem  as  usage  there."  The  re- 
mark is  equally  true  of  Pennsylvania.  The  late  Chief  Justice 
Sharswootl,  in  a  lecture  before  the  Law  Academy  of  Phila- 
delphia in  1S55,  traced  with  great  learning  the  development 
of  a  wide-reaching  common  law,  "  by  the  silent,  gradual,  yet 
all-sufficient  power  of  common  usage  and  consent; "  citing 
among  other  instances,  the  right  of  a  tenant  for  a  term  certain 
to  the  way-going  crop  {Dlffedorffer  v.  Jone?  (1782),  cited  in 
StuUs  V.  Dickey,  5  Binn.  289;  6  Am.  Dec.  41 1);  but  not  to 
spring  grain  {Demi  v.  Bossier,  1  Pen.  and  W.  22-4);  the  non- 
existence of  markets  overt  {Ilosack  v.  Weaver,  1  Yeates  479); 
barring  dower  by  a  simple  deed  {Dacey  v.  Turner,  1  Dall.  11); 
and  as  showing  that  changes  were  not  confined  to  the  civil 
courts,  the  repudiation  of  the  punishment  of  the  ducking  stool 
and  some  other  punishment  not  in  accordance  with  the  notions 
of  the  i)eople  {James  v.  Com,.,  12  Serg.  &  R.  220).  "  Every 
country"  says  Tilghman,  Ch.  J.,  in  Guardians  of  the  Poor  v. 
Greene,  5  Binn.  554,  "  has  its  common  law.  Ours  is  composed 
partly  of  the  common  law  of  England  and  partly  of  our  own 
usages.  When  our  ancestors  emigrated  from  England,  they 
took  with  them  such  of  the  English  principles  as  were  con- 
venient for  tho  situation  in  which  they  were  about  to  place 
themselves. 

It  required  time  and  experience  to  ascertain  how  much  of 
the  English  law  would  be  unsuitable  to  this  country.  By 
degrees,  as  circumstances  demanded,  we  adopted  the  English 
usages,  or  substituted  others  better  suited  to  our  wants,  until 
at  length,  before  the  time  of  the  revolution,  we  had  formed  a 
system  of  our  own,  founded  in  general  on  the  English  consti. 
tution,  but  not  without  considerable  variations."  From  the 
earliest  tlays  of  the  provi  nee,  as  we  have  thus  seen,  the  failure 
to  appear  after  duo  service  of  a  summons  has  been  treated  as  a 
contenipt  of  the  process  of  the  court,  and  the  dilatory  and  cum- 
brous ni3thods  of  outlawry  and  distress  to  avoid  the  technical 
necessity  of  an  ap])earance  have  been  discarded  in  favor  of  the 
shorter,  simpler  and  more  eflPective  remedy  of  judgment  for  the 
default,  apparently  originating  in  usage,  the  fountain  of  com- 
mon law,  sanctioned  by  frequent  statutory  recognition,  and 
extended  in  i*s  operation  from  time  to  time  by  judicial  applica- 
tion.   An  instance  of  such  judicial  extension  is  found  in  the 


■:m-u 


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TfM^j 


JM-rK:) 


376 


AMERICAN  CRDtlNAL  REPORTS. 


adoption  of  the  equity  rules  by  this  court  in  18G5,  wlierebv 
subpoenas  to  appear  were  abolished,  and  in  their  place  was  sub- 
stituted the  service  of  a  copy  of  the  bill,  Avith  a  notice  endorsed 
thereon  to  appear,  and  that  on  failure  to  do  so  a  decree  pro 
confesso  might  be  entered  thereon  for  the  default.  And  a  still 
more  recent  instance  is  to  be  found  in  LongweU  v.  Ilartwell 
164  Pa.  533,  where  it  was  held  that  judgment  might  be  en- 
tered by  default  for  want  of  appearance  against  a  garnishee, 
although  the  statute  makes  no  express  provision  for  any  such 
judgment.  We  therefore  conclude  that  the  practice  is  entitled 
to  recognition  as  an  integral  part  of  the  common  law  of  the  state. 

It  is  true  we  have  found  no  precedents  in  the  quarter  ses- 
sions or  in  criminal  cases,  but  as  indictments  against  corpora- 
tions were  even  rarer  in  early  times  than  they  are  now,  the 
absence  of  reported  decisions  is  not  conclusive  against  the 
practice;  and  as  both  the  object  sought  and  the  technical  ol> 
jection  to  be  avoided  are  the  same,  and  as  in  misdemeanors, 
where  the  personal  presence  of  the  defendant  is  not  noccssarv, 
the  application  of  the  remedy  is  equally  convenient  and 
effective,  we  see  no  good  reason  why  the  same  remedy  should 
not  apply  in  one  case  as  in  the  other. 

The  order  refusing  judgment  is  reversed^  and  judgment 
directed  to  be  entered  against  the  defendant  by  default  for 
want  of  appearence. 

Note. — American  common  late— Criminal  matters. — There  are  no  com- 
mon law  offenses  against  the  United  States.  U.  S.  v.  Hudson,  11  U.  S.  7; 
Cranch,  32;  United  States  v.  Britton,  108  U.  S.  199;  United  States  v.  Eaton, 
144  U.  S.  677.  In  State  v.  Cummings,  33  Conn.  260,  it  was  held  that  the 
common  law  prevails  in  the  District  of  Columbia,  in  respect  to  theft  In 
an  early  Ohio  case  {Key  v.  Vattier,  1  Ohio  132),  it  was  decided  that  while 
the  common  law  in  that  state  was  in  force  as  to  civil  cases,  it  could  have 
no  application  in  the  punishment  of  crimes.  It  is  announced  by  tlie  court 
in  Re  Lamphcre,  61  Mich.  105,  that  no  crime  is  punishable  under  the  laws 
of  that  state  except  the  same  is  provided  for  by  statute.  In  Corn.  v.  Wibstcr, 
5  Cush.  295,  it  is  said  that  murder  and  manslaughter,  not  being  defined  in 
the  Massachusetts  statute,  their  definition  must  be  found  in  the  common 
law,  which  had  not  only  been  adopted  by  the  first  settlers  by  universal  con- 
sent, but  afterward  confirmed  by  the  constitution.  In  Maryland  the  com- 
mon law  of  conspiracy  is  recognized  as  in  force.  State  v.  Dtichatian,  5 
Harr.  &  J.  858.  State  v.  Rollins,  8  N.  H.  550,  holds  that  the  common  law 
as  to  kidnapping  prevails  in  New  Hampshire.  The  common  law  as  to 
homicide  without  intent  to  kill,  says  State  v.  Smith,  82  Me.  869.  obtains  in 
Maine.  (As  to  the  adoption  of  English  common  law  in  this  country  see 
extended  and  exhaustive  note  to  McKemwn  v.  Winn  (Okla.),  22  L.  R.  A. 
501.) 


vliereby 
vas  sub- 
ndorsed 
ree  pro 
fl  a  still 

be  en- 

rnishee, 

n  y  such 

ntitled 

e  state. 

rter  ses- 

3orpora- 


PEOPLE  V,  JOHNSON.  377 


People  v.  Johnson. 

(140  N.  Y.  350.) 

MrRPER :  Circumstantial  evidence— Proof  of  blood  stains — Malice, 

1.  The  appellate  court  will  not  disturb  a  verdict  of  murder  in  the  first  de- 

grt-e.  where  motive  and  opportunity  are  shown,  and  all  the  evidence, 
thiiuf^h  wholly  circumstantial,  points  so  surely  to  defendant  as  the  au- 
thor of  the  crime  as  to  exclude  any  other  rational  conclusion, 

2.  Though  defendant's  expressions  of  malice  toward  deceased  long  before 

the  murder  were  followed  by  friendly  relations,  continued  to  the  time 
of  defendant's  discharge  from  employment,  defendant's  belief  that  his 
discharge  was  occafiioned  by  deceased,  and  his  want  of  work  and 
money,  may  have  revived  his  malice;  and  such  malice,  and  the  tempta- 
tion to  robbery,  would  constitute  adequate  motives  for  the  murder. 

3.  The  fact  that  money  displayed  by  defendant  was  not  absolutely  identi- 

fied as  that  paid  to  deceased  on  the  day  of  his  murder  does  not  weaken 
the  facts  that  just  before  the  murder  defendant  had  no  money  and 
no  means  of  obtaining  any,  and  was  in  distressing  need,  and  that  im- 
mediately after  he  had  in  his  possession  almost  the  exact  amount  paid 
to  deceased,  and  in  the  same  denominations  of  currency,  and  gave  a 
false  explanation  of  where  and  from  whom  he  got  it. 

4.  It  is  proper  to  refuse  a  charge  that  jurors  should  doubt  or  be  convinced 

as  jurors  when  they  would  doubt  or  be  convinced  as  men. 

Appeal  from  Court  of  Oyer  and  Terminer  of  New  fork 
City  and  County,  General  Term. 

Mathew  Johnson  was  convicted  of  murder  in  the  first  de- 
gree, and  appeals.    Affirmed. 

T.  Mc Cants  Stewart,  for  appellant. 
Ilenrij  B.  B.  Stapler,  for  the  State. 

Finch,  J.  The  death  and  the  violence  which  caused  it,  al- 
leged in  the  indictment,  were  proved  in  this  case  by  direct  evi- 
dence, as  the  law  now  requires,  and  were  put  beyond  contro- 
versy by  the  finding  of  the  dead  body  with  the  marks  of  murder 
upon  it.  But  the  guilt  of  the  prisoner  as  the  perpetrator  of  the 
crime  was  established,  as  it  may  be,  by  evidence  wholly  cir- 
cumstantial in  its  character.  It  is  assailed  on  this  appeal  as 
being  equivocal  and  inconclusive,  consistent  with  a  possibility 
of  innocence,  and  not  strong  enough  to  justify  the  verdict 
founded  upon  it.  We  have  read  it  and  reflected  upon  it  with 
the  care  and  deliberation  due  to  the  extrem<»  gravity  of  the  in- 


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ST.-S 


AMERICAN  CRIMINAL  REPORTS. 


quiry,  but  without  finding  any  reason  to  doubt  or  distrust  the 
conclusion  reached  by  the  jury.  A  sufficient  and  adtquato 
motive  for  the  crime,  consisting  of  revenge  for  a  supposed  in- 
jury, and  supplemented  by  a  desire  to  obtain  the  money  known 
to  have  been  paid  to  the  deceased,  and  which  was  stolen  from 
his  person;  a  convenient  and  presumably  safe  opportunity 
arising  from  the  prisoner's  familiarity  with  the  premises,  bis 
knowledge  of  a  place  in  which  to  hide  until  all  the  occupants 
of  the  building  had  departed  after  their  usual  habit,  .uid  leav- 
ing the  engineer  alone  and  unprotected  while  closing  the  prem- 
ises and  preparing  for  his  own  departure;  the  presence  of  the 
tools  and  instruments  sufficient  to  effect  the  killing,  the  exist- 
ence and  locality  of  which  were  well  known  to  the  prisoner, 
and  which  were  found  near  by  with  blood  and  hair  uj^on  them; 
the  track  of  the  murderer  from  the  basement  to  the  wasliino' 
closet  on  the  fourth  floor,  shown  by  the  bloody  finger  marks 
on  the  doors  passed  in  the  ascent,  and  the  stains  upon  the  towel 
used  in  an  effort  to  efface  the  marks  which  the  struggle  luid  left 
upon  him;  the  theft  of  the  black  trousers  left  on  the  same  floor 
and  which  on  the  next  day  were  found  in  the  possession  of  tiie 
prisoner,  who  sought  to  dispose  of  them  to  others;  his  disi)]ay 
immediately  after  the  killing,  of  an  amount  of  monoy,  and  in 
denominations  closely  corresponding  to  that  which  was  taken 
from  the  pockets  of  the  deceased,  coupled  with  the  fact  that 
before  the  killing  the  prisoner  was  penniless,  unable  to  pav 
his  rent,  borrowing  small  sums  where  ho  could,  out  of  work 
and  earning  nothing,  and  pawning  his  clothing  to  relieve  his 
want;  his  manifest  falsehood  as  to  the  source  from  which  he 
obtained  the  money;  his  effort  to  frame  and  prove  a  false  de- 
fense of  absence  in  New  Jersey  on  the  day  of  the  homicide; 
the  blood  stains  on  the  clothing  and  shoes  which  he  wore  on 
that  day;  his  attempt  to  avoid  and  escape  arrest  wlien  the 
crime  became  known  and  suspicion  was  aroused;  the  fact  that 
while  offering  himself  as  a  witness,  and  protesting  with  a  ve- 
hemence almost  amounting  to  blasphemy  that  he  was  innocent, 
he  nevertheless  gave  no  explanation  of  his  possession  of  the 
stolen  trousers,  or  of  the  money  which  he  had  displayed,  but 
remained  utterly  silent  where  explanation  was  eas}'  and  imper- 
ative, if  innocence  existed — all  these  incriminating  facts  sur- 
rounded by  and  imbedded  in  others  of  less  importance,  point 
so  surely  to  the  prisoner  as  the  author  of  the  crime,  and  so  ex- 


PEOPLE  V,  JOHNSON. 


379 


elude  any  other  rational  explanation,  as  to  compel  our  concur- 
rence with  the  verdict  of  the  jury.  Their  probative  force  lies 
larffelv  in  their  combined  and  aggregate  strength,  each  sepa- 
rate fact  lending  to  and  receiving  from  all  the  others  a  conclu- 
siveness boyond  its  own.  Some  of  them,  alone  and  severed 
from  their  place  in  the  sequence  of  the  proof,  have  been  criti- 
cised in  the  prisoner's  behalf,  but  are  open  to  such  criticism 
onlv  in  respects  which  are  technical  rather  than  substantial, 
and  remain  practically  unaffected  by  it. 

Thus,  it  is  said  that  the  proof  of  blood  stains  upon  the  prison- 
er's clothing  lacked  the  necessary  certainty,  in  view  of  the  evi- 
dence that  they  might  have  come  from  the  market  in  which 
he  was  in  the  habit  of  playin^,,  and  where  the  blood  of  animals 
was  (Irii)ping,  and  that  the  expert  called  by  the  prosecution  re- 
fused to  swear  positively  that  the  stains  were  human  blood. 
1  doubt  if  any  scientific  ability  can  surely  and  with  absolute 
certainty  distinguish  between  the  blood  corpuscles  of  man  and 
of  some  animals,  under  all  circumstances.  And  it  rather 
streno'tliens  confidence  in  the  opinion  which  Dr.  Edson  did  ex- 
press, that  he  refused  to  turn  it  into  a  positive  assertion,  and 
left  it  to  stand  as  his  judgment,  that  the  uniformity  in  size,  cor- 
responding with  that  of  human  blood  corpuscles,  which  char- 
acterized the  stains  examined,  indicated  that  the  latter  were 
not  caused  by  the  blood  of  other  animals.  Nobody  saw,  no- 
body observed  these  stains  before  the  afternoon  of  the  murder, 
so  far  as  the  record  shows,  and  that  they  were  occasioned  by 
human  blood  is  indicated  with  at  least  a  high  degree  of  prob- 
ability, which  is  entitled  to  greater  weight  when  put  in  con- 
nection with  the  other  proof. 

/•gain,  it  is  argued  that  the  prisoner's  expressions  of  malice 
toward  the  deceased  were  long  before  the  killing,  and  followed 
by  apparently  friendly  relations.  That  is  true,  but  such  re- 
lations continued  only  down  to  the  time  of  his  discharge,  and 
after  that  the  only  direct  proof  we  have  Avhich  brings  the  two 
men  tngother  at  all  is  that  of  the  prisoner's  concealment  on  the 
premises,  the  vicious  motive  of  which  the  deceased  evidently 
suspected.  And  the  prisoner's  animosity  against  the  man 
whom  he  believed  had  occasioned  his  discharge,  might  easily 
have  resumed  its  influence,  and  become  intensified,  when  want 
of  money  and  of  work,  and  the  bitterness  of  absolute  poverty 
revived  its  memory;  and,  when  to  that  is  added  the  temptation 


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8S0 


AMERICAN  CRIMINAL  REPORTS. 


of  robbery,  adequate  motives  are  shown,  so  far  as  such  motives 
can  be  said  ever  to  be  adequate. 

It  is  further  urged  that  the  money  which  the  prisoner  dis 
played  was  not  absolutely  identified  as  that  which  was  jiajd  to 
the  deceased  an  the  day  of  his  death.  That,  also,  is  true,  but 
it  does  not  weaken  the  facts  that  just  before  the  killing,  the 
prisoner  had  no  money  and  no  means  of  obtaining  anv,  and 
was  in  distressing  need  of  it,  and  immediately  after  the  murder 
had  in  his  possession  almost  exactly  the  amount  paid  to  the 
deceased,  and  in  the  same  denominations  of  currency,  and  that 
his  explanation  of  where  and  from  whom  he  got  it  was  un- 
questionably false. 

There  was  no  error  in  permitting  the  drawings  representing 
the  premises  to  be  put  in  evidence.  They  were  not  photofrraphs 
but  sketches  made  by  an  artist,  showing  the  locality  of  the 
blood  stains  in  the  basement  and  on  the  doors  above.  He 
swore  to  their  accuracy  from  his  own  personal  knowledjijeand 
observation.  The  learned  trial  judge  was  extremely  careful 
about  them.  He  required  explicit  proof  of  their  accuracy,  and 
where  descriptive  words  were  marked  upon  them,  stood  ready 
to  strike  oflf  any  to  which  reasonable  objection  should  be  made. 
They  served  only  to  explain  localities,  and  their  accuracy  was 
satisfactorily  shown. 

Nor  was  there  error  in  admitting  what  is  here  criticised  as 
being  hearsay  evidence.  The  witness  Sawyer,  when  examined 
by  the  counsel  for  the  prisoner  as  to  an  interview  with  Seay. 
was  asked  if  the  latter  said  that  he  came  from  Joiinson,  to 
which  the  witness  replied  in  the  affirmative.  The  answer  in- 
volved his  construction  of  what  Johnson  said  to  him,  and  in- 
dicated some  sort  of  authority,  or  some  requested  action  on  the 
part  of  the  latter,  which,  if  disclosed,  would  explain  or  limit 
the  answer.  The  prosecutor  ask«d  what  it  was  that  Seay  said. 
or  in  substance,  what  language  he  used  in  conveying  the  idea 
that  "  he  came  from  Johnson."  The  prisoner's  counsel  had 
drawn  out  that  statement,  and  the  prosecutor  had  the  right  to 
know  the  words  which  Seay  used  in  making  it.  The  door  was 
opened  to  that  extent  at  least,  and  the  question  and  answer  in- 
volved no  error. 

The  charge  of  the  court  to  the  jury  was  careful,  just  and  fair, 
so  much  so  that  no  exception  was  taken  to  it;  but  it  was 
followed  by  a  large  numljer  of  requests  to  charge,  most  of 


PEOPLE  V.  JOHNSON. 


881 


which  were  granted,  and  a  few  only  refused.  That  refusal,  in 
most  cases,  was  beca^je  the  requests  had  already  been  covered 
by  the  charge,  but  in  some  because  the  propositions  asked  were 
erroneous.  Thus,  there  was  a  request  to  charge  that  direct  evi- 
dence is  always  the  most  satisfactory,  and  that  the  jurors  should 
be  convinced  as  jurors  when  they  would  be  convinced  as  men, 
and  should  doubt  as  jurors  when  they  would  doubt  as  men, 
each  of  ^\'hich  propositions  sets  up  an  unsafe  and  inaccurate 
standard  by  which  to  guide  the  judgment.  The  one  is  untrue 
and  tiie  other  eliminates  the  oath  and  the  responsibility  of  the 

jury- 

I  am  unable  to  see  any  ground  upon  which  the  judgment 
a^^ainst  the  prisoner  should  be  reversed.  The  trial  was  fair, 
and  conducted  with  a  careful  regard  for  the  rights  of  the  ac- 
cused. The  judge  presiding  evidently  realized  that  the  pris- 
oner was  a  helpless  colored  boy,  without  friends  or  money,  and 
so  entitled  to  have  every  possible  right  preserved  with  more 
than  the  usual  care.  The  attorney  who  defended  him  at  the 
trial  (lid  so  faithfully,  and  with  all  the  resources  at  his  com- 
mand; and  on  the  argument  here  the  accused  was  represented 
bv  a  counsel  of  his  own  race,  who  argued  the  case  with  courage 
and  zeal,  and  a  professional  ability  worthy  of  commendation. 

We  can  not  see  that  any  mistake  has  been  made  or  any 
injustice  been  done,  and  so  are  compelled  to  decide  that  the 
verdict  must  stand.  The  judgment  should  be  affirmed.  All 
concur.    Judgment  affirmed. 

Note. — Circiivistantial  cHdence. — There  are  two  legal  principles  appli- 
cable to  such  evidence,  wJiich  are  quite  well  established.  First,  that  each 
of  the  several  circumstances  upon  which  the  conclusion  of  guilt  neces- 
sarily depends,  nnist  be  proven  bej'ond  a  reasonable  doubt;  and  second,  that 
they  must  not  only  point  with  moral  certainty  to  the  guilt  of  the  defend- 
ant, but  must  exclude,  to  a  moral  certainty,  every  other  reasonable  hy- 
pothesis. Comm.  V.  Webster,  5  Cush.  295,  52  Am.  Dec.  711;  3RiceEv., 
§§  346-348;  Kollock  and  another  v.  The  State,  88  Wis.  663. 

Again,  we  find  some  of  the  courts  of  last  resort  holding  a  somewhat  dif- 
ferent view,  as  evidenced  by  the  opinion  of  the  court  in  State  v.  Rome,  64 
Conn.  339,  in  which  they  say  :  It  is  claimed  that  the  courts  and  text  writ- 
ers have  recognized  a  marked  distinction  between  the  two  classes  of  evi- 
dence, direct  and  circumstantial,  and  that  while  the  absolute  necessity  of 
convicting  on  circumstantial  evidence  is  strongly  urged,  for  the  safety  of 
society,  in  view  of  the  secrecy  of  many  crimes,  yet  that  juries  have  been 
and  should  be  warned  that  this  class  of  evidence  must  be  weighed  with 
greater  caution  than  direct.  The  real  point  of  this  contention  appears  to 
be  tills :    That  it  ia  not  enough  to  tell  the  jury  that  "  the  proof  ought  to  be 


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382 


AMERICAN  CRIMINAL  REPORTS. 


not  only  consistent  with  the  person's  guilt,  but  inconsistent  witli  any  other 
rational  conclusion" — an  extreme  statement,  except  as  limited  liy  tli^.  court 
to  be  equivalent  to  proof  beyond  reasonable  doubt,  but  whic-li,  it  is  said 
applies  only  to  the  circumstances  taken  as  a  whole  and  in  agKrciiatidn,  but 
that  the  jury  should  be  further  instructed  that  "  every  single  ciicuinstance 
relied  on  for  conviction  must  be  proved  beyond  a  reasonable  doulit,"  and 
that  the  jury  "  should  not  only  be  satisfied  from  a  consideration  of  tlie  cir- 
cumstances, both  singly  and  as  a  whole,  that  guilt  has  been  proven  beyond 
a  reasonable  doubt,  but  that  from  each  and  all  of  the  circiiinstaneeg  no 
reasonable  hypothesis  can  be  adduced  consistent  with  innocence."  This  it 
seems  to  us,  is  requiring  the  statement  to  the  jury  of  a  i-ule  wliicli  would 
indeed  well  serve  the  purpose  of  a  defendant  in  a  criminal  case,  since  it 
would  in  all  probability  be  misunderstood,  and  certainly,  if  iindctstood 
and  followed,  would  render  conviction,  in  any  case  where  so-called  circum- 
stantial evidence  had  alone  been  introduced,  impossible.  Conclusions  of 
jurore  in  all  cases  result  from  inferences.  The  circumstances  on  which  the 
inferences  are  based,  in  all  cases,  must  be  directly  proved;  and  in  criminal 
cases  each  fact,  the  existence  of  which  is  necessary  to  the  conclusion  of 
the  guilt  of  the  accused,  must  be  so  proved  beyond  a  reasonable  doubt. 
Every  fact  from  which  an  inference  necessary  to  a  conviction  is  drawn 
being  so  proved  by  direct  evidence  and  beyond  a  reasonable  doubt,  the  in- 
ference based  on  any  fact  so  proved  should  be  a  clear,  stronjj;.  natural, 
logical  one — the  result  of  an  open  and  visible  c;jnnection  and  relation  be- 
tween the  fact  proved  and  the  matter  inferred.  Suppose  the  (juestion  is 
whether  A  stole  a  horse,  and  a  witness  deposes  that  A  was  found  in  pos- 
session of  the  horse  the  night  after  it  was  missed.  Tlie  evidence  on  this 
point  is  the  direct  statement  of  the  witness.  If  the  jui-y  have  any  reason- 
able doubt  as  to  the  correctness  of  that  statement,  they  ought  not  to  regard 
it  as  introducing  any  fact  into  the  case.  If  they  have  none,  the  fait  is  in- 
troduced, and  the  inference  or  presumption  resulting  from  such  ])()ssession 
by  the  accused  arises.  In  order  to  render  any  circumstantial  evidence  ad- 
missible, two  elements  are  essential.  It  must  be  a  direct  statenu-nt,  and  of 
a  relevant  fact.  The  court  is  the  sole  judge  of  the  question  concirning  its 
admissibility.  The  evidence  being  admitted,  the  jury  is  the  sole  judge  of 
its  weight.  They  are  not  bound  to  believe  any  witness,  or  to  be  convinced 
by  any  given  amount  of  circumstantial  evidence.  Doubtless  such  circum- 
stantial evidence  varies  greatly  in  its  probative  force;  but  there  is  and  can 
be  no  rule  of  law  requiring  the  jury  to  convict  on  the  stronger  evidence,  or 
to  acquit  on  the  weaker.  Steph.  Cr.  Law,  pp.  249,  251,  273,  274;  State  v. 
Watkins,  9  Conn.  47,  54;  State  v.  Oreen,  35  Conn.  203.  The  wliole  sul)ject 
must  be  left  entirely  in  the  hands  of  the  jury.  So  long  as  they  are  informed 
as  to  their  duty  not  to  draw  any  inference  whatever  from  any  fact  not 
sufficiently  proved,  the  inferences  which  they  may  draw  from  tliose  which 
are  proved,  if  such  as  the  evidence  tends  to  prove,  must  be  left  to  their  ex- 
clusive and  free  judgment,  with  which  it  is  neither  the  duty  nor  the  jjrivi- 
lege  of  the  court  to  interfere.  The  conclusion  reached  by  Wharton  in  his 
work  on  Criminal  Evidence  (9th  Ed.,  §  20),  after  elaborate  discussion,  ap- 
pears to  us  to  be  correct.  He  says:  "  There  is,  therefore,  no  gi-ouiul  for 
the  distinction  between  circumstantial  and  direct  evidence.  All  evidence 
admitted  by  the  court  is  to  be  considered  by  the  jury  in  making  up  their 
verdict,  and  their  duty  is  to  acquit  if,  on  such  evidence,  there  is  reasonable 
doubt  of  the  defendant's  guilt;  if  otherwise,  to  convict." 


LAMBRIQHT  ET  AL.  v.  STATE. 


883 


Blood  .ltd ins— Proof  of.— The  consensus. of  opinion  among  micruscopists 
and  incdiio-lesal  jurist**  seems  to  be  that  in  the  present  state  of  science  it  is 
ji^possible  to  identify  dried  human  blood  as  such.  The  most  tliat  is  claimed 
is  that  wliile  it  can  not  be  determined  that  any  given  blood  is  human,  yet  it 
can  oftt'U  bo  said  it  is  not  human,  which  is  frequently  quite  as  important 
Many  of  tline  most  competent  to  speak  hold  that  no  conscientious  observer 
will  appear  in  a  court  of  justice  and  under  oath  say  that  a  certain  stain  is 
human  blond.  For  a  learned  and  elaborate  treatment  of  this  important 
subject,  see  5  Chicago  Law  J.,  114, 190;  10  Medico-Legal  Journal.  175,  429. 

MuUce.—A.n  intentional  killing  does  not  necessarily  prove  malice,  for 
such  killinf^  may  be  wholly  justifiable;  as,  where  it  is  done  in  necessary 
self-defi'iiHc;  or  it  may  be  only  manslaughter;  as,  where  it  is  done  in  the  heat 
of  piission  caused  by  sufficient  provocation.  The  existence  or  non-existence 
of  malice  is  an  inference  to  be  drawn  from  all  the  facts  in  the  case,  taken 
togetlier  iis  a  wliole.  That  an  intention  to  kill  does  not  constitute  malice,  is 
well  established  by  the  best  authorities.  '*  If  there  be  evidence  of  express 
malict>— that  is,  a  positive  intention  to  kill — existing  in  the  mind  of  the 
slayer  at  the  time  of  inflicting  the  wound,  the  killing  is  murder  in  the  sec- 
ond degree; "  thus  the  trial  court  instructed  the  jury  in  Denison  v.  State, 
13Ind.  510.  The  supreme  court  commenting  upon  this  said:  "This  in- 
struction contains  an  error  which  may  have  misled  the  jury.  It  informs 
them  that  intention  to  kill,  existing  .at  the  commission  of  the  act,  consti- 
tutes exi)re,ss  malice.  This  is  entirely  wrong.  In  justifiable  homicide  there 
is  intention  to  kill,  but  not  necessarily  malice  or  premeditation.  In  murder  in 
tiie  first  degree  tliere  is  intention  to  kill  accompanied  with  premeditated 
malice,  except  in  certain  cases  in  which  certain  acts  are  made  murder  by 
statute.  In  murder  in  the  second  degree,  there  is  intention  to  kill  accom- 
panied by  malice,  but  without  premeditation.  In  manslaughter,  there  may 
be  intention  to  kill  arising  from  the  sudden  transport  of  passion,  but  it  may, 
and  must,  in  this  grade  of  offense,  be  unaccompanied  by  both  premedita- 
tion aiid  malice."  To  the  same  effect  are  Trumble  v.  Territory,  3  Wyo. 
280;  Pcoj'le  v.  Barry,  31  Cal.  357;  Quarles  v.  State.  1  Sneed  407;  2  Bish. 
Cr.  Law,  g.^  645,  670,  695;  Whait.  Horn.,  §  669;  Stokes  v.  People,  53  N.  Y. 
164. 


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LaMBRIGHT   ET   AL.    V.    StaTE. 

(34Fla.  564.) 

Murder:    J  uy — Qualifications. — Dying  declarations. 

1.  It  is  not  a  proper  question  to  ask  a  venire  man  if  he  would  find  a  man 

guilty  on  circumstantial  evidence. 

2.  A  venire  man  had  read  in  the  papers  all  about  the  trial  of  S.  for  the 

murder  of  G. ,  and  had  formed,  and  still  entertained,  an  opinion  as 
to  his  guilt  or  innocence,  but  knew  nothing  about  the  case  against  the 
accused,  who  were  being  tried  for  the  murder  of  G.,  and  the  opinion 
which  had  been  formed  iu  reference  to  the  guilt  or  innocence  of  Sk 


i  t 


384 


AMERICAN  CRIMINAL  REPORTS. 


would  have  nothing  to  do  with  the  case  against  the  accuscU.    Bd^ 
that  the  venire  man  was  a  competent  juror. 

8.  The  court  must  decide  in  the  first  instance  whether  the  evidi'iuo  of  the 
cor/JM«  rie/ich  is  prinm /act«  sufficient  to  permit  confessions  of  the  ac. 
cuaud  to  go  to  the  jury,  and,  when  the  evidence  of  the  coriniH  delicti 
lias  been  admitted  by  the  court,  the  jury  must  determine  its  sutliciency 
to  establisli  the  fact  for  which  it  was  admitted,  as  any  otlier  t'ui  t  bufore 
tlieni. 

4.  It  is  not  competent  for  a  party  who  has  received  a  mortal  wound  to 
state  who  inflicted  the  wound,  unless  the  statement  formed  a  part  of 
the  rea  gestae  or  is  admissible  as  a  dying  declaration. 

6.  All  declarations  or  exclamations  uttered  by  the  parties  to  atninsaction, 
and  which  are  contemporaneous  with  and  accompany  it,  and  me  cal- 
culated to  throw  light  upon  the  motives  and  intention  of  the  paities 
to  it,  are  clearly  admisBible  as  parts  of  the  res  geatae. 

Error  to  Circuit  Court,  Marion  County;  W.  A.  Hocker,  Judge. 
Jenkins  Lambright  and  Albert  Stevens,  convicted  of  murder, 
bring  ei'ior.    Affirmed. 

IT.  IC  Zctmdski  and  Hugh  E.  Miller^  for  plaintiffs  in  error. 
William  B.  Lamar,  Atty.  Gen.,  for  the  State. 

Mabrv,  J.  Plaintiffs  in  error  were  indicted  for  the  murder 
of  George  Gowan,  and  upon  trial  were  convicted  of  murder  in 
the  first  degree,  with  a  recommendation  of  mercy  to  the  court. 
The  case  is  here  on  writ  of  error  to  the  judgment  of  the  court 
imposing  the  penalty  of  the  law  upon  the  accused.  Many  ex- 
ceptions were  taken  during  the  trial  of  the  case,  and  numerous 
grounds  were  assigned  for  a  new  trial  in  a  motion  for  tliat 
purpose,  which  was  overruled  hy  the  court.  It  is  the  duty  of 
this  court  to  consider  all  assignments  of  error  properly  made 
and  argued  here,  but,  under  a  well  established  rule,  assign- 
ments of  error,  though  properly  made,  and  "^ot  argued,  are  to 
be  considered  as  abandoned.  The  assignments  of  error  argued 
by  counsel  for  plaintiffs  in  error  will  be  considered  in  this 
opinion,  but  those  not  presented  will  not  be  discussed. 

It  is  insisted  that  the  court  erred  in  refusing  to  permit  coun- 
sel for  the  accused  to  ask  a  venire  man  by  the  name  of  Martin 
whether  he  would  find  the  defendants  guilty  on  circumstantial 
evidence.  The  bill  of  exceptions  shows  that  the  juror  named 
was  asked  if  he  would  find  a  man  guilty  on  circumstantial 
evidence,  and  the  court  ruled  that  it  was  not  a  proper  ques- 
tion.   The  record  shows  that  this  juror  was  challenged  by  the 


LAMBRIOHT  ET  AL.  v.  STATE. 


385 


defendants,  and  did  not  sit  in  the  trial  of  the  case;  nor  does  it 
apiwar  that  the  defon(hints  had  exhausted  their  challenges 
when  the  panel  was  completed.  On  this  record  it  does  not 
apwar  that  any  harm  was  done  the  accused  by  reason  of  the 
rulin"-  of  the  court,  or  that  they  were  not  tried  by  a  jury 
acceptal)lo  to  them.  Furthermore,  we  do  not  think  that  the 
question  ])ropounded  to  the  juror  was  proper.  Section  2850, 
Rev.  St.,  ])rovide3  that  "  no  person  whose  opinions  are  such  as 
to  preclude  him  from  finding  any  defendant  guilty  of  an  offense 
punislial)le  with  death  shall  be  allowed  to  serve  as  a  juror  on 
the  trial  of  any  capital  case."  If  the  puriwse  of  the  question 
was  to  (lisquali/y  the  juror  under  this  section,  it  is  apparent 
that  it  was  not  properly  framed  to  elicit  the  necessary  facts  to 
disqualify. 

After  the  regular  panel  for  the  week  had  been  exhausted  in 
organizing  the  jury,  the  court  proceeded  with  a  special  veniro 
that  had  been  summoned,  and  thereupon  the  defendants  ob- 
jected to  ])roceeding  with  the  special  venire,  on  the  ground 
that  a  full  regular  ]>anel  of  twelve  jurors  had  not  been  tendered. 
The  court  overruled  the  objection,  and  defendants  excepted. 
From  the  statement  in  the  bill  of  exceptions  it  appears  that 
the  regular  panel  which  was  first  taken  up  and  exhausted  did 
not  contain  twelve  names,  but  there  is  nothing  to  indicate  why 
the  panel  was  not  complete.  The  objection  of  the  defendants 
came  after  this  panel  was  exhausted,  and  was  on  the  ground 
that  they  were  entitled  to  a  full  regular  panel  of  twelve  per- 
sons. The  act  of  185)3  (chapter  4122,  §  5)  provides  for  the 
drawing  and  summoning  of  thirty  persons  to  serve  as  grand 
and  petit  jurors  for  a  term  of  court;  and  on  the  first  day  of 
the  term  it  is  made  the  duty  of  the  judge  "  to  place  the  names 
of  the  thirty  persons  so  summoned,  or  so  many  of  them  as 
may  appear  in  response  to  the  summons,  in  a  box,  and  draw 
therefrom  the  names  of  eighteen  persons,  who  shall  serve  as 
grand  jurors  for  the  term,  and  the  persons  whose  names  re- 
main in  the  box  shall  serve  as  petit  jurors  for  the  first  week  of 
the  term."  It  is  to  be  presumed,  nothing  to  the  contrary 
having  been  shown,  that  the  absence  of  a  full  panel  of 
petit  jurors  for  the  week  was  attributable  to  some  good  cause. 
If  any  of  the  thirty  persons  selected  under  the  statute  to  serve 
as  grand  and  petit  jurors  for  the  first  week,  or  the  twelve  se- 
lected as  a  petit  jury  for  any  subsequent  week,  were  absent 
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AMERICAN  CRIMINAL  REPORTS. 


nnd  not  served,  or  if  any  served  were,  for  any  valid  caiisp,  ex- 
cused  from  jury  service,  the  panel  of  the  petit  jurors  would 
not  consist  of  twelve  ])er8ons.  While  the  act  referred  to  suys 
nothing  about  supplying  a  deficiency  that  may  exist  in  a  jury 
list,  it  does  provide  that  the  [Kjrsons  whose  names  remain  in 
the  box  after  drawing  the  grand  jury  list  shall  serve  as  petit 
jurors  for  the  first  week  of  the  term.  Such  a  panel,  tlioiigh 
not  composed  of  twelve  names,  would,  to  the  extent  of  the 
persons  selected,  be  a  proper  jury  list  under  the  statute.  We 
do  not  understand  that  the  objection  made  goes  to  the  extent 
of  questioning  the  legality  of  the  regular  panel  because  it  was 
not  full,  but  it  is  claimed  that  the  court  should  have  completed 
the  panel  before  tendering  it  to  the  defendants.  It  does  not 
appear  that  defendants  ever  insisted  on  a  full  panel  of  twelve 
persons  before  proceeding  with  it;  but,  on  the  contrary,  it 
does  not  appear  that  the  ])anel  was  exhausted  without  any  ob- 
jection on  the  part  of  the  accused  that  it  was  not  full.  It'  the 
defendants  had  the  right,  in  the  first  place,  to  demand  tliat  the 
panel  for  the  week  be  supplied  with  other  names  until  there 
were  twelve  ])erson8  on  the  panel  for  the  week — a  point  not 
determined — they  waived  it  by  proceeding  without  objection 
until  the  list  was  exhausted.  No  attack  was  made  on  the 
regular  panel,  but  counsel  for  the  accused  objected  to  proceed- 
ing further  in  the  organization  of  the  jury  after  the  rcj^ular 
panel  had  been  exhausted,  because  twelve  names  were  not 
on  it. 

Before  proceeding  with  the  special  venire,  a  motion  was 
made  to  quash  it,  on  the  grounds  that  it  was  issued  before  the 
regular  panel  was  exhausted,  and  because  there  were  on  the 
special  venire  names  of  persons  who  had  served  as  jurors  at 
the  same  term  of  the  court.  It  does  not  appear  from  the  rec- 
ord whether  the  special  venire  was  issued  before  or  after  the 
regular  panel  was  exhausted.  A  motion  was  made  to  quash 
the  special  venire,  because  it  was  issued  before  the  regular 
panel  was  exhausted,  and  the  court  overruled  the  motion;  but 
what  were  the  facts  before  the  court  when  the  motion  was 
overruled  we  do  not  know.  The  statute  provides  that  "  when, 
by  reason  of  challenge  or  otherwise,  a  sufficient  number  of 
jurors  drawn  and  summoned  can  not  be  obtained  for  the  trial 
of  the  cause  in  the  county  or  circuit  courts,  the  court  shall 
cause  qualified  jurors  to  be  summoned  by  the  sheriff  from  the 


LAMBRIOHT  ET  AL.  v.  STATE. 


887 


bystanders,  or  from  the  county  at  large,  to  complcto  the 
panel."  Rev.  St.  §  1158.  Wo  do  not  see  that  the  court  is  for- 
bidden to  issue  a  8|)ecial  venire  until  a  reguhir  panel  has  been 
exhausted,  and  we  see  no  reason  why  the  court  can  not,  in  an- 
ticipation of  a  failure  to  obtain  a  jury  out  of  one  list,  have 
another  summoned  to  be  in  readiness  if  needed.  If  a  jury 
should  bo  solootod  before  reaching  the  venire  summoned  in  an- 
ticipation of  its  necessity,  it  would  not  be  needed;  but  if  it 
should  become  necessary,  no  possible  detriment  could  befall 
the  accused  l)ecause  it  was  summoned  before  the  completion  of 
another  i)anel.  It  is  often  necessary  that  such  a  venire  should 
be  summoned  in  order  to  prevent  needless  delay  in  the  pro- 
ceedings of  the  courts,  and  such  has  been  the  practice  in  ni-yl 
prim  trials.  The  language  of  the  statute  does  not  prohibit 
such  practice,  and  it  should  not  be  so  construed.  The  court 
would  not  bo  authorized,  of  course,  to  depart  from  one  venire, 
and  resc)/t  to  another  out  of  its  order.  Mathia  v.  State,  31  Fla. 
21)1;  Collins  v.  State,  31  Fla.  .574. 

It  was  made  to  ai)pear  that  one  of  the  jurors  called,  stated 
that  he  had  served  at  that  term  of  the  court;  and  it  was  ob- 
jected by  the  defense  that  no  person  could  be  drawn  to  serve 
on  a  petit  jury  more  than  once  during  the  same  calendar  year. 
Whao  it  is  shown  that  the  juror  had  served  at  that  term  of  the 
court,  it  does  not  appear  that  he  had  been  regularly  drawn  to 
serve  as  a  juror  at  that  term,  or  within  twelve  months  pre- 
viously. The  provision  of  the  Revised  Statutes  (section  1152) 
that  no  person  shall  be  drawn  to  serve  on  a  petit  jury  more 
than  once  during  the  same  calendar  year  does  not  create  a  dis- 
qualification, but  simply  provides  a  personal  privilege  to  the 
citizen  to  an  exemption  from  jury  duty  for  more  than  one 
term  during  the  same  calendar  year.  We  so  construed  the 
statute  in  the  case  of  Blount  v.  State,  30  Fla.  287,  11  South. 
547,  and  this  case  is  decisive  of  the  objection  raised  here. 
Furthermore,  the  record  shows  that  the  juror  sought  to  be 
disqualified  did  not  sit  on  the  case,  and  it  does  not  appear  how 
he  got  excused. 

It  is  further  insisted  that  the  court  erred  in  not  sustaining 
defendants'  challenge  for  cause  of  a  venire  man  named  Peter 
Mclntire.  It  appeared  that  one  Snyder  had  been  tried  for 
the  murder  of  George  Gowan,  and  this  juror  had  read  in  the 
papers  all  about  the  trial  of  Snyder,  and  had  formed  an  opinion 


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368 


AMERICAN  CRIMINAL  REPORTS. 


as  to  his  guilt  or  innocence,  and  entertained  the  same  opinion 
The  juror  stated,  however,  that  he  knew  nothing  about  the 
case  against  tiie  accused,  and  that  the  opinion  formed  in  refer- 
ence to  the  Snyder  case  would  have  nothing  to  with  tiie  case 
against  the  defendants.  He  was  clearly  competent,  ami  the 
court  did  not  err  in  overruling  the  challenge  for  cause. 

Another  contention  is  that  the  court  erred  in  refusino-  the 
request  of  the  defendants  to  have  Dave  English,  a  state  wit- 
ness, put  in  charge  of  du  officer.  Dave  English  was  one  of  the 
principal  witnesses  for  rhe  state,  it  being  through  his  instru- 
mentality that  certain  confessions  of  the  crime  charged  were 
obtained  from  the  defendants;  and  after  he  had  been  oxainined 
as  a  witness,  and  as  he  was  leaving  the  witness  stand,  counsel 
for  defendants  requested  that  he  be  not  allowed  to  oonnnuni- 
cate  or  associate  with  any  of  the  other  witnesses.  Tiie  court 
charged  the  witness  not  to  have  any  intercourse  with  anv  of 
tlie  Avitnesses,  or  any  other  person,  al)out  the  case,  but  declined 
to  put  him  in  charge  of  an  officer,  to  which  defendants  ex- 
cepted. Discussion  is  out  of  jdace.  Manifestly  there  was  no 
error  in  the  ruling  of  the  court. 

A  further  ground  of  contention  is  that  the  court  erred  in 
allowing  private  counsel  to  assist  the  state  attorney  in  the 
prosecution  of  the  case  against  the  accused.  It  appears  that. 
after  the  jury  had  been  impaneled,  counsel  for  defendants  an- 
nounced to  the  court  that  counsel  were  assisting  the  state 
attorney;  and  an  objection  was  made,  on  the  ground  that  there 
*'as  no  necessity  for  it,  and  that  private  counsel  had  no 
authority  to  appear  for  the  state  unless  acting  for  and  bv  au- 
thority of  the  state  and  under  oath.  Thereupon  tiie  court 
directed  the  counsel  to  be  sworn  as  assistants  of  the  state 
attorney,  and  defendants  objected  to  the  counsel  being  sworn 
at  that  stage  of  the  case,  and  exce|>ted  to  the  ruling  of  the 
court.  It  a])pears.that  the  assistant  counsel  were  procured  bv 
and  with  the  consent  of  the  court,  and  they  were  sworn  as 
such  by  the  court.  The  statute  (section  13.'»5,  Rev.  St.)  pro- 
vides that  "  the  state  attorney,  by  and  with  the  consent  of 
court,  may  procure  the  assistance  of  any  member  of  the  bar 
■when  the  amount  of  the  state  business  renders  it  necessary. 
either  in  the  grand  jury  room,  to  advise  them  upon  legal 
points  and  framing  indictments,  or  in  court  to  prosecute  crim- 
inals.   But  such  assistant  shall  not  be  authorized  to  sign  any 


LAMBRIGHT  ET  AL.  v.  STATE. 


389 


indictments  or  administer  any  oaths,  or  to  perform  any  other 
duty  excci)t  the  giving  of  legal  advice,  drawing  up  of  indict- 
ments and  the  prosecuting  of  criminals  in  open  court.  His 
compensiition  shall  be  paid  by  the  state  attorney,  and  not  by 

the  state." 

The  objection  made — that  assistant  counsel  could  not  appear 
in  the  case  without  being  sworn — was  met  by  having  the  coun- 
sel sworn,  and  the  presumption  is,  from  the  action  of  the  court, ' 
that  the  state  business  rendered  it  necessary  that  such  counsel 
be  procured.  There  is  no  showing  in  the  record  that  the  as- 
sistant counsel  were  procured  by  any  other  person  than  the 
state  attorney,  or  that  they  acted  in  the  trial  of  the  case  other- 
wise than  under  the  authority  of  the  court.  The. court  has 
the  authority,  under  the  statute,  to  authorize  counsel  to  assist 
the  state  attorney  when  the  business  of  the  state  renders  it 
necessarv;  and  there  is  nothing  in  the  record  to  show  that  the 
action  of  the  court  was  unauthorized  in  permitting  counsel  to 
assist  the  state  attorney  in  the  trial  of  this  case,  Nothing  was 
decided  in  the  case  of  EUlridge  v.  State,  27  Fla.  162,  against 
the  ri<^ht  of  the  court  to  do  wh.at  it  did  in  the  present  case. 

Anotlier  ground  of  objection  is  that  the  court  erred  in  send- 
\n<f  the  jury  back  after  they,  for  the  second  time,  returned 
into  court,  and  announced  that  they  could  not  agree  upon  a 
verdict.  The  record  does  not  supix>rt  this  contention.  It  ajv 
pears  that,  some  time  after  the  jury  had  retired  to  consider 
the  case,  tliey  returned,  and  asked  the  court  to  give  them  the 
last  instruction  given,  and  the  court,  in  the  presence  of  the  ac- 
cused and  their  counsel,  gave  the  instruction  requested;  and 
then  a  recess  of  the  court  was  taken  until  8:30  o'clock  next 
morning.  At  that  time  the  jury  returned  into  court,  and  an- 
nounced that  they  did  not  believe  they  could  agree  upon  a 
verdict,  and  requested  the  court  to  re-deliver  to  them  certain 
portions  of  the  charges  given  them,  which  the  court  did,  in 
the  presence  of  the  accused  and  their  counsel.  The  jury  was 
then  directed  to  reti  ;  and  further  consider  of  their  verdict, 
and,  after  being  out  some  time,  returned  into  court  with  a  ver- 
dict. When  the  jury  returned  into  court  the  first  time,  it 
was  for  the  purpose  of  having  the  court  give  them  a  portion 
of  the  charge;  and  when  they  returned  the  second  time,  and 
announced  that  they  did  not  believe  they  could  agree,  a  fur- 
ther request  was  matle  for  portions  of  the  charge  to  be  given 


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390 


AMERICAN  CRIMINAL  REPORTS. 


tliem  by  the  court.  The  statute  provides  that  "  when  a  jury 
after  due  and  thorough  deliberation  upon  any  cause,  shall  le' 
turn  into  court  without  having  agreed  on  a  verdict,  the  court 
may  explain  to  them  anew  the  law  ap])licable  to  the  case,  and 
may  send  them  out  again  for  further  deliberation;  but  if  they 
shall  return  a  second  time  without  having  agreed  on  a  verdict 
they  shall  not  be  sent  out  again  without  their  own  consent,  un- 
less they  shall  ask  from  the  court  some  further  explanation  of  the 
law."  Rev.  St.  §  1093.  In  Adaimv.  State,  3i Fla.  185, 15  South. 
905,  we  held  that  the  statute  confers  upon  juries  the  le<ral 
right  to  be  discharged  from  any  cause  when,  after  due  and 
thoi'ough  deliberation,  they  come  into  court  for  the  second 
time,  after  being  re-charged,  and  avow  their  inability  to  agree 
upon  a  verdict,  without  requesting  further  explanation  of  the 
law.  The  jury  did  not  announce  to  the  court  that  they  could 
not  agree  upon  a  verdict  after  they  sought  and  obtained  fur- 
ther explanation  of  the  law,  and  the  court  did  not  err  in  send- 
ing them  back  after  re-charging  them  as  requested. 

The  assignments  of  error,  based  U)x>n  the  grounds  in  the  mo- 
tion for  a  new  trial  that  remarks  of  counsel  for  the  state  in 
addressing  the  jury,  and  the  statement  of  t)io  court  to  the  jury 
when  they  ^vere  directed  to  retire  and  further  consider  their 
vertlict,  were  prejudicial  to  the  accused,  are  nc»t  sui)ported  by 
anything  appearing  in  the  bill  of  exceptions.  The  motion  for 
a  new  trial  is  not  evidence  of  its  recitals,  and,  in  the  absence 
of  sufficient  evidence  in  the  bill  of  exceptions  to  sustain  the 
motion,  the  presumption  is  that  it  was  correctly  overruled. 

In  the  case  before  us  the  confessions  of  the  accused  were  mainly 
relied  upon  for  a  conviction.  It  is  insisted  for  the  accused  that 
the  court  erred  in  holding  that  the  corpus  delicti  had  been  suf- 
ficiently proven  to  admit  the  confessions  in  evidence,  without 
first  having  the  jury  to  pass  upon  the  question  of  the  sutlicieucy 
of  the  proof  as  to  the  corpus  delicti.  The  position  assumed  by 
counsel,  as  we  understand  it,  is  that  it  is  the  province  of  the 
jury  to  determine  whether  the  proof  of  the  corpus  delicti  is 
sufficient  to  admit  e. .dence  of  confessions  of  the  crime  on  the 
part  of  the  accused.  This  position  is  not  correct.  The  court 
must  decide  in  the  first  instance  whether  the  evidence  of  the 
corpus  delicti  is  primafacie  sufficient  to  allow  the  confessions  to 
go  to  the  jury;  and,  when  the  evidence  of  the  corpus  delicti 
has  been  admitted  by  the  court,  the  jury  must  determine  its 


LAMBRIGHT  ET  AL.  v.  STATE, 


891 


sufficiency  to  establish  the  fact  for  which  it  was  admitted,  as 
anv  other  question  of  fact  before  them.  The  decision  of  the 
court  in  admitting  evidence  of  the  cm'pxis  delicti  does  not  bind 
the  jury,  as  the  province  of  the  court  in  such  particular  is  only 
to  determine  whether  sufficient  evidence  has  been  adduced  to 
allow  it  to  go  to  the  jury  for  their  determination.  Window 
V.  State,  76  Ala.  42.  The  proof  of  the  corpus  delicti,  in  order 
to  sustain  a  conviction,  must  be  such  as  to  exclude  from  the 
minds  of  the  jury  every  reasonable  doubt  as  to  the  existence 
of  tluit  fact.  This  is  the  established  rule,  and  is  clearly  stated 
in  the  case  of  State  v.  Flanagan,  26  W.  Va.  116,  cited  by  coun- 
sel for  plaintiffs  in  error.  It  is  also  a  fundamental  rule,  of  an- 
cient origin,  that  no  person  shall  be  convicted  or  involved  in 
the  consequences  of  guilt  on  extra-judicial  confessions  without 
proof  aliunde  of  the  corpus  delicti;  and,  before  such  confes- 
sions siiould  be  allowed  to  go  to  the  jury,  there  should  be 
proof  before  the  court  tending  to  show  that  the  offense  to 
which  the  confession  relates  has  been  committed.  In  some 
cases  the  evidence  establishing  the  existence  of  a  crime  also 
points  out  the  guilty  agent,  while  in  others  the  evidence  of  the 
crime  is  visible,  but  its  perpetrator  is  left  in  mystery.  A 
criminal  charge  against  an  accused  involves  both  the  commis- 
sion of  an  offense  and  his  guilty  agency  in  connection  there- 
with, and  both  of  these  propositions  must  be  fully  established 
before  the  jury.  Anderson  v.  State,  24  Fla.  139.  The  author- 
ities cited  by  counsel  for  plaintifis  in  error  do  not  sustain  the 
view  that  the  jury  should,  in  the  first  instance,  pass  upon  the 
sufficiency  of  the  proof  as  to  the  corpus  delicti,  before  confes- 
sions can  be  admitted  in  evidence.  In  Gray  v.  Com.,  101  Pa. 
St.  380,  it  is  said :  "  The  true  rule  in  such  cases  is  believed  to 
be  this :  When  the  commonwealth  has  given  sufficient  evidence 
of  the  corpus  delicti  to  entitle  the  case  to  go  to  the  jury  it  is 
comi)etent  to  show  a  confession  made  by  the  prisoner  connect- 
ing him  with  the  crime.  Under  such  circumstances,  the  jury 
should  first  pass  upon  the  sufficiency  of  the  evidence  of  the 
t'orpiis  ddicti.  If  it  satisfies  them  beyond  a  reasonable  doubt 
that  the  crime  has  been  committed,  then  they  are  at  liberty  to 
give  the  confession  such  weight  as  it  is  entitled  to,  taking  into 
view  the  circumstances  surrounding  it,  and  the  extent  to  which 
it  has  been  corroborated."  This  case  holds  that  the  corpus  de- 
licti must  be  established  bevond  a  reasonable  doubt,  and  that 


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392 


AMERICAN  CRIMINAL  REPORTS. 


there  can  be  no  conviction  without  such  proof.  In  jiassin* 
upon  the  entire  case  submitted  to  them,  the  jury  must  iirst  as- 
certain from  the  proof  whether  a  crime  has  been  coniuiitted  • 
and,  if  convinced  bej'ond  a  reasonable  doubt  on  this])oint,  thev 
are  to  see  whether  or  not  the  accused  is  criminally  coiuiocted 
therewith.  There  is  nothing  in  the  case  to  indicate  that  it  was 
intended  to  hold  that  the  jury,  in  the  first  instance,  should  pass 
upon  the  sufficiency  of  the  proof  of  the  corpus  delicti,  before 
confessions  of  the  accused  could  be  admitted  in  evidence.  This 
is  the  province  of  the  court,  and  not  the  jury.  In  the  next 
place,  it  is  insisted  that  conceding  the  right  of  the  court  to  de- 
termine, in  the  first  instance,  the  sufficiency  of  the  proof  of  the 
corpus  delicti  to  admit  in  evidence  the  confes  jions  of  the  ac- 
cused, the  court  erred  in  so  ruling  in  this  case.  The  deceased 
whose  death  it  is  alleged  in  the  indictment  before  us  was  ac- 
complished by  the  accused,  was  shot  in  his  own  house,  and  died 
from  the  effects  of  the  wound.  There  was  produced  no  wit- 
ness who  saw  him  shot,  and  no  one  saw  him  until  some  time 
after  he  was  shot.  He  lived  in  Silver  Springs  Park,  ^farion 
county,  Fla.;  and  a  state  witness  testified  that  between  S  and 
9  o'clock  in  the  evening  he  heard  the  report  of  a  pistol  in  the 
direction  of  the  house  of  deceased,  and  early  next  niorninff 
witness  went  to  the  house,  and  called  deceased,  but  he  made 
no  answer.  About  11  o'clock  same  morning  witness  returned, 
and  found  that  deceased  was  shot.  Another  state  witness,  who 
lived  about  one-eighth  of  a  mile  from  the  house  of  the  deceased, 
heard  two  shots  and  a  horn  blow,  or  something  he  did  not  un- 
derstand, in  the  direction  of  the  house,  about  8  or  9  o'clock  in 
the  evening ;  and  next  morning,  between  7  and  8  o'clock,  wit- 
ness, in  company  with  another  party,  went  to  the  house  of  the 
decejised,  and  the  other  party  rapped  on  the  door,  and  deceased 
asked  who  Avas  there,  and,  being  asked  what  the  matter  was, 
said  he  Avas  sick.  Witness  went  home,  and  did  not  then  see 
deceased,  but  returned  in  one-half  or  three-fourths  of  an  hour, 
and  saw  deceased.  He  was  shot,  and,  when  seen,  was  lying 
on  the  outside  of  his  bed,  with  his  clothes  on,  and  there  was 
blood  on  his  left  side  and  on  his  shirt.  When  witness  returned, 
he  was  in  company  with  other  persons,  and  deceased  was  asked 
what  was  the  matter,  and  said  that  he  had  been  shot.  An  effort 
was  then  made  to  get  in  at  all  the  windows,  and,  the  bed-room 
window  of  deceased  being  found  unfastened,  one  of  the  parties 


LAMBRIGHT  ET  AL.  v.  STATE. 


303 


iil  .'■ 


was  put  through  it,  and  opened  the  door,  when  all  went  in  the 
house.  AVitness  did  not  hear  deceased  say  much.  He  lay 
"moaning,"  and  witness  heard  him  say  nothing  but  that  he 
was  shot.  Witness  discovered  a  hole  in  the  door  through  which 
a  bullet  had  gone,  and  a  bullet  was  found.  A  physician  saw 
deceased  about  10  o'clock  of  the  same  day,  and,  on  examina- 
tion, found  that  he  had  been  shot,  the  ball  entering  near  the 
richt  scapula.  The  wound  was  pronounced  by  the  doctor  to 
be  mortal,  and  the  deceased  died  same  day,  in  the  evening. 
When  first  seen  by  the  doctor,  about  10  o'clock  in  the  morn- 
\nc,  deceased  was  very  weak.  A  very  large  track  was  discov- 
ered in  the  morning  at  the  gate,  near  the  house  of  deceased, 
and  two  witnesses  who  had  seen  tracks  made  by  the  accused, 
stated  that  to  the  best  of  their  knowledge,  the  track  discov- 
ered near  the  gate  compared  exactly  with  that  made  by  one  of 
the  accused.  It  was  testified  by  another  witness  that  about 
one  month  before  the  deceased  was  shot,  the  other  accused 
stated  to  witness  that  he  would  get  square  with  deceased  if  he 
could.  This  statement  was  made  in  a  conversation  in  which 
the  accused  said  he  had  been  shooting  pigeons  around  the  house 
of  deceased,  and  wanted  to  know  if  deceased  could  stop  him. 
It  aii])ears  from  the  testimony  of  R.  C.  Bogie,  a  witness  exam- 
ined by  the  accused,  that  the  deceased  stated,  during  the  morn- 
ino"  of  the  day  he  died,  that  he  was  shot  during  the  previous 
evening.  Some  two  months  after  deceased  was  buried,  his 
body  was  exhumed,  and  a  number  38-calil)er  pistol  ball  ex- 
tracted therefrom.  The  court  permitted,  in  addition  to  the 
proof  relative  to  the  death  of  the  deceased,  voluntary  state- 
ments made  by  the  accused  some  six  months  afterward — that 
they  called  the  deceased  to  his  door  about  9  o'clock  the  night 
he  received  the  fatal  wound,  and  shot  him,  when  he  shut  the 
door,  blew  a  horn,  and  they  ran  away.  Other  details  of  the 
shooting,  as  given  in  the  confessions,  need  not  be  mentioned. 

In  our  opinion,  the  court  did  not  err  in  allowing  the  con- 
fessions to  go  to  the  jury  for  their  consideration.  It  was  not 
the  province  of  the  court  to  determine  the  sufficiency  of  the 
proof  to  establish  the  corpus  delicti,  as  this  is  included  in  the 
charge  sigainst  the  accused  ;  but  it  is  the  duty  of  the  court  to 
determine,  in  the  first  instance,  whether  there  is  sufficient  evi- 
dence tending  to  show  the  corpus  delicti,  in  order  that  the  con- 
fessions of  the  accused  may  be  admitted  in  evidence  for  the 


i      '■;,'■ 

1   I''  ■ 

,■            '■     "        4'!: 

li 


394 


AMERICAN  CRIMINAL  REPORTS. 


consideration  of  the  jury.  On  the  showing  made  in  (ho  case 
before  us,  the  substance  of  which  we  have  given,  we  think  it 
WIS  sufficient  to  permit  the  confessions  to  go  to  the  jury,  and 
that  the  court  did  not  err  in  so  holding. 

The  wi*^^ness  Bogie,  testifying  for  the  accused,  stated  tliathe 
asked  the  deceased,  between  9  and  11  o'clock  of  the  day  that 
he  died,  what  was  the  matter  with  him,  and  he  stated  that  he 
was  shot.  The  following  question  was  then  propounded  to 
the  witney  the  defense,  viz.:  "Did  he  tell  you  who  shot 

him?    Ai  M    5tate  his  reply."    The  state  objected  to  the 

question,  ana  the  court  refused  to  allow  it  answered ;  and  it  is 
now  insis*^  >d  that  there  was  error  in  the  ruling.  What  was 
expected  to  be  '^rou^  '•  ^ut  by  the  question  is  not  indicated  in 
the  record,  further  than  ti);".  disclosed  by  the  question  itself. 
In  the  investigation  of  this  point,  we  have  labored  under  a  hias 
in  favor  of  allowing  the  statement  of  the  deceased  as  to  who 
shot  him  to  go  to  the  jury,  but,  under  the  facts  of  this  case, 
liave  been  unable  to  find  any  sound  rule  of  law  permittini^  it. 
It  is  not  claimed  t liat  such  statement  was  admissible  as  a  dying 
declaration.  The  record  negatives  a  proper  foundation  for  its 
admission  under  this  head,  and  counsel  for  the  accused  ex- 
pressly disclaimed  the  right  to  have  it  admitted  on  this  ground. 
It  was  claimed  that  the  statement  of  the  deceased  as  to  who 
shot  him  was  admissible  as  forming  a  part  of  the  res  g<'ntae, 
and  this  is  the  ground  assumed  in  argument  here  in  support 
of  the  contention  that  the  court  erred  in  excluding  the  question. 
If  the  deceased  stated  who  it  was  that  shot  him,  and  tliis  state- 
ment formed  a  part  of  the  res  gestae,  there  can  be  no  douht 
about  its  admissibility.  The  decision  of  the  trial  court  was 
adverse  to  the  view  that  the  statement  of  the  deceased  was  a 
part  of  the  res  gestae,  and  this  is  the  question  that  we  must  de- 
termine. In  the  case  of  Railway  Co.  v.  Anderson,,  82  Tex. 
510,  17  S.  W.  1039,  it  is  said :  "  All  declarations  or  exclama- 
tions uttered  by  the  parties  to  a  transaction,  and  wliich  arc 
contemporaneous  with  and  accompany  it,  and  are  calcuhited 
to  throw  light  upon  the  motives  and  intention  of  the  i)ai'ties 
to  it,  are  clearly  admissible  as  parts  of  the  res  gestae.  Verv 
respectable  authorities  restrict  the  doctrine  of  res  gestae  within 
the  limits  indicated  by  the  foregoing  definition,  and  exclude 
all  declarations  which  are  a  narrative  of  past  occurrences. 
This  is  a  convenient  and  salutary  rule,  and   probably  the 


ii' 


LAMBRIGHT  ET  AL.  v.  STATE. 


395 


more  logical  one;  and  if  it  were  an   oj^en  question  in  this 
state  we  should  hesitate  long  before  adopting  another.   Another 
rule,  applied  in  many  of  the  American  courts  at  least,  is  to 
admit  as  parts  of  the  7'es  gestae  not  only  such   declarations  as 
accompany  the  transaction,  but  also  such  as  are  made  under 
such  circumstances  as  will  raise  a  reasonable  presumption 
that  they  are  the  spontaneous  utterance  of  thoughts  created  by 
or  springing  out  of  the  transaction  itself,  and  so  soon  there- 
after as  to  exclude  the  presumption  that  they  are  the  result  of 
premeditation  or  design."    This  quotation  shows  the  difference 
between  the  restricted  and  the  more  liberal  application  of  the 
rule  as  api>lied  by  the  courts  at  the  present  time.    In  the  case  of 
Com.  V.  IVPike,  3  Cush.  181,  the  defendant  was  indicted  for  the 
murder  of  his  wife,  and  it  apj^eared  that  the  deceased  ran  up 
the  stairs  from  her  room  in  the  night,  bleeding,  and  crying 
"  Murder ! "     Another  woman,  into  whose  room  she  was  ad- 
mitted, went,  at  her  request,  for  a  physician.     A  third  person, 
who  heard  the  cries,  went  for  a  watchman,  and  on  his  return, 
went  to  the  room  where  deceased  was,  and  found  her  on  the 
floor,  bleeding  profusely.     She  said  that  the  accused  stabbed 
her,  and  the   Supreme  Court  of   Massachusetts  held  that  h:;r 
statement  was  properly  admitted  as  part  of  the  res  gestae. 
Mr.  Wharton,  in  his  book  on  Criminal  Evidence,  considers  the 
decision  in  this  case  unsound.    Whart.  Cr.  Ev.,  §  262.    lie  says : 
•'  The  distinguishing  feature  of  declarations  of  this  class  is  that 
they  should   be  the   necessary  incidents  of  the  litigated  act; 
necessary  in   this  sense,  that  they  are  part  of  the  immediate 
concomitants  or  conditions  of  such  act,  and  are  not  protluced 
by  the  calculated  policy  of  the  actors.     In  other  words,  they 
must  stand  in  immediate  casual  relation  to  the  act,  and  become 
part  either  of  the  action  immediately  producing  it,  or  of  the 
action  which   it  immediately  produces.     Incidents   that  are 
thus  immediately  and  unconsciously  associated  with  an  act, 
whether  such  incidents  are  doings  or  declarations,  become  in 
tliis  way  evidence   of   the  character  of  the  act."     Id.  §  203. 
The  time  intervening  between  the  transaction  or  act  and  the 
declaration  in  reference  thereto  is  to  be  considered,  but  is  not 
of  itself  controlling.     It  is  said  in  State  v.  Garrand,  5  Or.  216  : 
"  To  make  declarations  a  part  of  the  res  gestae,  they  must  be 
contemporaneous  with  the  main  fact;  but,  in  order  to  be  con- 
temporaneous, they  are  not  required  to  be  precisely  concurrent 


W^^ 


"                  i 

r;  I' 


1 


'-    1    ! 


11^ 


S96 


AMERICAN  CRIMINAL  REPORTS. 


in  time.  If  the  declarations  spring  out  of  the  transaction  if 
they  elucidate  it.  if  they  are  voluntary  and  spontaneous,  and 
if  they  are  made  at  a  time  so  near  to  it  as  reasonably  to  ])re. 
elude  the  idea  of  deliberate  design,  they  are  then  to  be  regarded 
as  contemjxjraneous." 

This  is  the  rule  stated  by  Judge  Nisbet  for  ihe  court  in  the 
well  considered  case  of  MitcJmtn  v.  State,  11  Ga.  615.  The 
tendency  of  the  courts  seems  to  be  in  favor  of  applying  the 
liberal  rule  on  this  subject;  and  as  held  by  the  Supreme  Court 
of  the  United  States  in  Insurance  Co.  v.  Jloshj/,  8  Wall,  ,'5!)7: 
"  Though  generally  the  declarations  must  be  contemporaneous 
with  the  event,  j^et,  where  there  are  connecting  circumstances, 
they  may,  even  when  made  some  time  afterward,  form  a  part 
of  the  whole  res  gestaeP  Each  case  must,  of  course,  dojiend 
upon  its  facts,  and  the  trial  court  must  exercise  a  sound  dis- 
cretion in  determining  whether  the  facts  bring  the  offered  evi- 
dence within  the  rule.  Whether  we  apply  the  restricted  or  the 
liberal  rule  on  the  subject,  our  examination  of  the  authorities 
has  satisfied  us  that  the  ruling  of  the  court  excluding  the  state- 
ment of  the  deceased,  as  not  being  a  part  of  the  res  gestae,  can 
not  be  held  as  error.  The  following  authorities,  containing 
discussions  of  the  rules,  are  cited :  Smith  v.  State,  53  Ala.  486; 
State  V.  Pomeroy,  25  Kan.  3-19;  Booth  v.  State,  4  Tex.  A]ip. 
202;  Warren  v.  State,  9  Tex.  App.  619;  Irby  v.  State,  2.5  Tex. 
App.  203;  Fulcher  v.  State,  28  Tex.  App.  465;  State  v.  J)ar id- 
eon,  30  Vt.  377;  State  v.  Carlton,  ■i:SVt.G3()',  State  v.  Dominique, 
30  Mo.  585;  Crookhamv.  State,  5  W.  Va.  510;  Hall  v.  Staf>\  48 
Ga.  607;  Railway  Co.  v.  IloUund,  82  Ga.  257;  Bradford  Citi/ 
V.  Downs,  126  Pa.  St.  622;  Bisho])'s  Cr.  Proc.  §  1085.  Tlie 
deceased,  according  to  the  evidence,  was  shot  between  eight 
and  nine  o'clock  one  evening,  and  it  was  near  nine  o'clock  ne.xt 
morning  when  he  was  asked  by  the  witness  Bogie  who  shot 
him.  He  was  then  very  weak,  but  the  testimony  does  not 
show  what  had  been  his  condition  from  the  time  he  was  shot 
up  to  that  time.  He  then  expressed  the  opinion  that  he  would 
recover.  It  may  be  inferred  from  the  circumstances  that  he 
was  in  a  helpless  condition,  and  was  unable  to  get  up  and  ojK'n 
the  door  of  his  house  when  parties  called  in  the  morning;  but 
still  there  is  no  sufficient  showing,  in  our  judgment,  to  reason- 
ably exclude  the  presumption  that  any  statement  made  by  him 
solonif  a  time  after  ho  was  shot  was  from  deliberate  de  I -n. 


•H 


>iis,  and 


LAMBRIGHT  ET  AL.  v.  STATE. 


897 


His  statement,  under  the  circumstances,  would  be  the  narration 
of  a  past  transaction,  without  sufficient  connecting  circum- 
stances to  characterize  it  as  a  spontaneous  utterance  or  neces- 
sary incident  of  the  transaction,  and  preclude  the  idea  of  delib- 
eration or  design. 

Tills  disposes  of  all  the  assignments  of  error  presented  by 
counsel,  except  that  the  evidence  is  not  sufficient  to  sustain  the 
verdict.  We  will  not  undertake  to  set  out  in  this  opinion  tiie 
evidence  in  the  case,  or  enter  upon  any  extended  discussion  of 
it.  The  credibility  of  the  Avitnesses  for  the  state  was  solely  a 
qu3stion  for  the  jury,  and  we  can  not  reverse  on  the  ground 
that  the  witnesses  did  not  tell  the  truth.  The  testimony  before 
us,  if  true,  is  sufficient  to  sustain  the  verdict.  Free  and  vol- 
untary confessions  on  the  part  of  the  accused  of  the  crime 
charged  were  testified  to  by  two  witnesses,  and  the  confessions 
testilled  to  were  corroborated  by  otiier  testimony  in  several 
particulars.  Gnii/  v.  Com.,  supra.  These  confessions  were 
obtained  through  the  instrumentality  of  detectives,  who  testi- 
fied to  them,  but  their  credibility  was  for  the  jury,  and  not  for 
the  court  to  settle.  We  see  from  the  charges  given  that  the 
court  cautioned  the  jury  as  to  the  character  of  such  evidence, 
and,  the  verdict  rendered  having  received  the  sanction  of  the 
court,  we  are  unable  to  disturb  it. 

The  judgment  is  affirmed,  and  it  is  so  ordered. 


Note. — Declarations  of  deceased — Res  gestae. — No  fixed  measure  of  time 
or  distance  from  the  main  occurrence  can  be  establislied  as  a  rule  to  deter- 
mine wliat  shall  bj  part  of  the  res  gestae.  Each  case  must  necessarily  de- 
pend on  its  own  circumstances  to  determine  whether  the  facts  offered  are 
realh/ pwrt  of  the  saine  continuous  transaction.  Comm.  v.  Werntz,  161  Pa. 
St.  591.  In  21  Am.  &  Eng.  Ency.  of  Law,  102,  the  rule  is  fairly  well  stated: 
If  tliey  (declarations)  "  are  made  under  such  circumstances  as  will  raise  the 
reasonable  presumption  that  they  are  the  spontaneous  utterances  of  thought 
created  by  or  springing  out  of  the  transaction  itself,  and  so  soon  thereafter 
as  to  exclude  the  presumption  that  they  are  the  result  of  premeditation  and 
design,  they  will  be  admissible  as  part  of  the  res  gestae." 

The  conversation  or  conduct  of  the  parties  at  and  immediately  preceding 
the  homicide  and  constituting  the  res  gestae  of  the  occurrence,  such  as  a 
witness  would  be  permitted  to  relate,  may,  we  think,  be  proved  by  the  dying 
declarations  of  the  person  killed.  Wilkerson  v.  State.  91  Ga.  729.  In  Hall 
V.  State,  132  Ind.  317,  it  was  held  in  a  prosecution  for  murder  by  the  ad- 
ministration of  poison  that  declarations  made  by  the  deceased  to  his  wife  in 
the  absence  of  the  accused  and  some  ten  or  fifteen  minutes  (the  exact  time 
not  being  material)  after  the  occurrence,  to  the  effect  that  the  accused  had 
invited  him  to  take  a  drink  of  wine,  and  that  it  was  very  bitter,  etc.,  were 


I 


m'  '1 


'^m 


U 


m 


i'gKi 

Jg^alS''.*!  r'jKHiti^' 

-i^^^J 

1 

if 

i|M|all 

398 


AMERICAN  CRIMINAL  REPORTS. 


not  admisHible  In  evidence,  being  bo  separated  from  the  act  as  to  Ih>  merely 
narrative  of  wliat  had  occurred  and  did  not  constitute  a  part  of  tin-  rat 
gestae. 

Dying  declarations  may  be  impeached  witliout  laying  grounds  for  that 
purpose  by  proof  of  contradictory  statements  of  the  declarant  which  were  not 
made  in  cvtremia,  as  well  as  by  those  made  in  ejrtremia,  MoreUwk  v.  state 
90  Tenn.  528;  People  v.  Lawrence,  21  Cal.  868;  Bish.  Ur.  Proc,  g  Vim. 


Stout  v.  State. 

(76  Md.  817.) 

Murder:    Death  in  another  county— Vemte— Separation  of  jury. 

Code,  Art.  27,  §  278,  provides  that,  "  if  any  person  be  feloniously  stricken  or 
poisoned  in  one  county,  and  die  of  the  same  stroke  or  poison  in  another 
county,  within  one  year  thereafter,  the  offender  shall  be  tried  in  tlie 
court  within  whose  jurisdiction  such  county  lies  where  the  stroke  or 
poison  was  given.  Held  that,  where  the  blow  was  struck  in  Maryland, 
and  death  ensued  in  Pennsylvania,  the  venue  in  an  indictment  forniur- 
der  waa  properly  laid  in  the  county  where  the  blow  was  struck.  Where, 
before  verdict,  a  sick  juror  had  been  separated  from  his  fellow  jurors 
during  a  recess  of  the  court,  and  it  appeared  that  he  had  not  Ix-en  tam- 
pered with,  a  motion  to  discharge  the  jury  was  rightly  overruled. 

Appeal  and  writ  of  error  in  one  record  from  Circuit  Court, 
Hartford  County. 

Alfred  Stout  was  indicted  for  the  murder  of  George  Ditmar. 
His  demurrer  to  the  indictments  and  motion  to  discharge  the 
jury  were  overruled,  and  defendant  was  convicted. 

Argued  before  Alvey,  0.  J.,  and  Bryan,  McSherry,  Fowler, 
Briscoe  and  Page,  JJ. 

C.  C.  Cmthers,  Rob.  C.  Thackcry  and  G.  Y.  Maynadicr,  tor 
the  appellant. 
Jno.  P.  Poe,  Attorney-General,  for  the  State. 

Alvey,  C.  J.  This  appeal,  taken  under  the  Act  of  1892 
(chapter  506),  enacted  as  section  77,  article  5,  of  the  Code,  is 
from  the  final  judgment  of  the  court  below,  sentencing  the 
appellant  to  death  on  a  verdict  of  murder  in  the  first  degree. 
There  are  two  questions  raised.  The  first  is  on  demurrer  to 
the  indictment,  in  respect  to  the  jurisdiction  of  the  court  to  try 
the  prisoner  because  of  supposed  defect  of  venue  as  to  the  com- 


STOUT  V.  STATE. 


809 


mission  of  the  crime;  and  the  second  is  presented  by  bill  of 
exception,  as  to  the  supposed  illegal  separation  of  the  jury  dur- 
in''  tlie  progress  of  the  trial. 

1,  As  to  the  demurrer  to  the  indictment:  The  indictment 
contains  four  counts.  There  is  no  question  made  upon  either 
the  first  or  second  count,  but  the  third  and  fourth  counts  are 
supposed  to  be  obnoxious  to  the  objection  taken  to  them  by 
demurrer.  The  demurrer  was  overruled,  and  the  prisoner  then 
pleaded  not  guilty,  upon  which  he  was  tried  and  convicted. 
The  third  count  of  the  indictment  charges  that  the  mortal 
blow  was  inflicted  by  the  prisoner  on  the  deceased  in  Cecil 
county,  Md.,  but  that  death,  in  consequence  of  the  wound,  sub- 
sequently ensued  in  the  city  of  Philadelphia,  in  the  State  of 
Pennsylvania.  In  the  language  of  the  indictment  it  is  charged 
that  tiie  accused,  "  on  the  1st  day  of  February',  1SS)I,  with  force 
and  arms,  at  Cecil  county,  aforesaid,  in  and  upon  one  George 
Ditniar,  in,"  etc.,  "  then  and  there  being,  feloniously,  willfully, 
and  of  his  malice  aforethought,  did  make  an  assault,"  etc., 
"and,  with  a  certain  stick,"  etc.,  "him,  the  said  Ditmar,  did 
then  and  there,  one  fatal  wound;  and  of  which  said  mortal 
wound  the  said  Ditmar,  on  and  from  the  said  1st  day  of 
February,  in  the  year  aforesaid,  until  and  upon  the  4th  day  of 
March,  in  the  year  aforesaid,  at  the  county  and  city  of  Phila- 
delphia, in  the  State  of  Pennsylvania,  then  and  there  did  lan- 
guish, and  languishing,  did  live;  on  which  said  4th  day  of  March, 
in  the  year  aforesaid,  at  the  county  and  city  last  aforesaid,  he, 
the  said  Ditmar,  of  the  mortal  wound  aforesaid,  died."  The 
fourtli  count,  charging  the  felonious  assault  and  wounding  as 
in  the  third,  differs  from  that  count  in  this :  that  in  the  fourth 
count  it  is  charged  that  the  mortal  blow  was  inflicted  on  the 
deceased  by  the  accused  at  Cecil  county,  Md.,  with  a  club,  "  and 
that  of  this  mortal  wound  said  Ditmar,  on  and  from  the  said 
1st  of  February,  in  the  year  aforesaid,  to  the  4th  day  of  March, 
in  the  year  aforesaid,  languished,  and  languishing,  did  live,  as 
well  at  and  in  the  county  aforesaid  as  at  and  in  the  county  and 
city  of  Philadelphia,  in  the  State  of  Pennsylvania,  then  and 
there  did  languish,  and  languishing,  did  live,  on  which  said  4th 
day  of  March,  in  the  j'ear  aforesaid,  at  and  in  the  county  and 
city  of  Philadelphia  aforesaid,  to  wit,  at  and  in  Cecil  county 
aforesaid,  the  said  Ditmar,  of  the  mortal  wound  aforesaid,  died." 
The  death  occurring  in  Philadelphia  as  the  result  of  the  mortal 


■li 


f. 

i 
1 

t 

'  5: 


K 


W'M^ 


400 


AMERICAN  CRIMINAL  REPORTS. 


wound  inflicted  in  Maryland,  the  question  prc-sentcd  ondcinnr- 
rer  to  tlio  third  and  fourtli  counts  of  the  indictniont  is  ono  in 
regard  to  wiiicli  some  doubts,  it  would  appear,  were  ciitor- 
tained  in  the  early  days  of  the  English  common  law.     Tlioso 
doubts  seem  to  have  had  their  foundation  in  certain  maxims 
and  practice  that  originally  obtained  in  respect  to  the  v(Miue 
for  the  trial  of  facts,  the  reason  for  which  has  long  Hinc(>  ccusocl 
to  exist;  it  being  supposed,  in  the  early  pcM'iods  of  the  Knylish 
law,  that  it  was  necassary  that  the  jury  should  come  from  the 
vicinage  where  the  matters  of  fact  occurred,  and  therufuro  bo 
better  qualified  to  investigate  and  discover  the  truth  i)f  the 
transaction  than  ])orsons  living  at  a  distance  from  the  scene 
could  be.     Hence,  the  venue  was  always  regarded  as  a  iiiatter 
of  substance;  and  where,  at  the  common  law,  the  counnission 
of  an  offense  was  commenced  in  one  county  and  consummated 
in  another,  the  venue  could  bo  laid  in  neither,  and  the  ofroiider 
went  altogether  unpunished.     And  even  in  the  case  of  murder, 
if  the  mortal  wound  was  inflicted  or  poison  administered  in 
one  county,  and  the  party  died  in  consequence  of  the  wound 
or  poison  in  another,  it  was  doubted  by  some  whether  the  mur- 
der could  be  punished  in  either  county,  for  it  was  supposed 
that  a  jury  of  the  first  could  not  take  cognizance  of  the  death 
in  the  second,  and  a  jury  of  the  second  could  not  inquire  of 
the  wounding  or  poisoning  in  the  first;  and  so  the  felon  would 
escape  punishment  altogether.     1  Chit.  Crim.  L.,  177.    This 
doubt  was  founded  in  a  mere  technicality,  and  savored  so  much 
of  a  senseless  nicety  that  it  was  deemed  a  reproach  to  the  law; 
and  to  remove  all  doubt,  and  to  fix  a  certain  venue  for  the  trial 
of  the  crime,  the  statute  of  2  and  3  Edw.  VI.  was  i)assed,  and, 
after  reciting  in  a  long  preamble  the  great  failures  of  justice 
which  arose  from  such  extreme  nicety,  that  statute  enacted 
that  in  cases  of  striking  or  poisoning  in  one  county  and  death 
ensuing  in  another  the  offender  could  be  indicted,  tried,  and 
punished  in  the  district  or  county  where  the  death  hap))oned, 
as  if  the  whole  crime  had  been  perpetrated  within  the  boundary 
of  such  district  or  county.     And  by  the  subsequent  statute  of 
2  Geo,  II.,  ch.  21,  it  was  enacted  that,  where  any  person  felo- 
niously stricken  or  poisoned  at  any  place  out  of  England  shall 
die  of  the  same  in  England,  or,  being  feloniously  stricken,  or 
poisoned  in  England,  shall  die  of  such  stroke  or  poisoning  out 
of  England,  an  indictment  thereof,  found  by  the  jurors  of  the 


STOUT  V.  STATE. 


401 


vjntv  in  whicli  either  the  death  or  the  cause  of  death  shall 
lesiR'ciivt'ly  happen,  shall  be  as  good  and  eirectual  in  law,  as 
well  a^''iiiiist  pi-incipalsas  accessories, as  if  the  offense  had  been 
roiiiiiiitlt'd  ill  the  connty  where  such  indictment  may  bo  found. 
Tho  principles  or  provisions  of  these  two  English  statutes  are 
not  exactly  consistent  the  one  with  the  other,  but  Stat.  2  and 
3  E(hv.  yi.,  ch.  24,  is  not  now  applicable  or  in  force  in  this 
state,  whatever  may  have  been  the  case  prior  to  our  own  act 
of  lS(iO(cli.  13S,  §  17);  and  tho  statute  of  2  Goo.  II.,  ch.  21, 
was  never  applicable  here,  as  found  by  Chancellor  Kilty  in  his 
Report  on  tiio  English  Statutes,  published  in  1811. 

By  section  278  of  article  27  of  tho  Code,  codified  from  sec- 
tion 17  of  the  act  of  1809  (ch.  138),  it  is  provided  that  "if  any 
iiersoa  I'e  feloniously  stricken  or  poisoned  in  one  county,  and 
die  of  the  same  stroke  or  poison  in  another  county,  within  one 
vear  tiiereafter,  the  offender  shall  be  tried  in  the  court  within 
whoso  jurisdiction  such  county  lies  where  the  stroke  or  poison 
was  given;  and  in  like  manner  an  accessory  to  murder  or  fel- 
ony committed  shall  be  tried  by  the  court  within  whoso  juris- 
diction such  person  became  accessory."  This  statute,  as  will 
be  observed,  conforms  neither  to  Stat.  2  and  3  Edw.  VI.  nor 
to  that  of  2  Geo.  II.;  but  it  is,  as  we  think  is  manifest,  simply 
in  conlirniation  or  declaratory  of  tho  common  law.  This,  we 
think,  is  made  clear  upon  examination  of  text- writers  of  high 
authority,  and  by  judicial  decision  of  courts  entitled  to  great 
weight  in  tho  determination  of  such  a  question;  and  if  this 
provision  of  our  Code  be  simply  declaratory  of  the  common 
law,  as  we  suppose  it  to  be,  the  same  reason  and  principle 
equally  apply  to  the  case  where  tho  mortal  blow  or  poison  is 
given  in  any  county  in  this  state,  and  tho  party  so  stricken  or 
poisoned  shall,  in  consequence  of  the  blow  or  poison,  die  out  of 
the  state  within  the  year  and  a  day  after  tho  blow  given  or 
poison  administered,  as  to  the  case  provided  for  by  tho  terms 
of  the  statute.  In  such  cases  it  is  the  law  of  Maryland  that  is 
violated,  and  not  tho  law  of  the  state  where  death  may  happen 
to  occur.  By  the  felonious  act  of  the  accused,  not  only  is  there 
a  great  personal  wrong  inflicted  upon  the  party  assaulted  or 
mortally  wounded  while  under  the  protection  of  the  law  of  the 
state,  but  the  peace  and  dignity  of  the  state  where  the  act  is 
perpetrated  is  outraged;  and,  though  death  may  not  immedi- 
ately follow,  yet,  if  it  does  follow  as  the  consequence  of  the 

26 


i( 


I'n' 


m 


1 ...  ^ 


1 4        .  ■'a"' 


i  \h 


402 


AMERICAN  CRIMINAL  REPORTS. 


felonious  act  within  the  year,  the  crime  of  murder  is  complete. 
In  inflicting  the  mortal  wound  then  ar.cl  there  the  accuseil 
expends  his  active  agsncy  in  p»*oducing  the  crime,  no  mat- 
ter where  the  injured  party  may  languish,  or  where  he  may 
die,  if  death  ensues  within  the  time  and  as  a  consequence  of 
the  stroke  or  poison  given.  The  grade  and  characteristics  of 
the  crime  are  determined  immediate]}'-  that  death  ensues,  and 
that  result  relates  back  to  the  original  felonious  woundino-  or 
poisoning.  The  giving  the  blow  that  caused  the  death  consti- 
tutes the  crime. 

Lord  Coke  seems  to  have  been  responsible  to  a  considerable 
extent  for  the  maintenance  of  the  doubt  that  was  formerly  en- 
tertained upon  this  subject.  In  3  Inst.,  at  page  48,  foundinf 
his  text  on  the  preamble  to  Stat.  2  and  3  Edw.  VI.,  he  says: 
"  And  before  the  making  of  Stat.  2  E.hv.  VI.,  if  a  man  had 
been  feloniously  stricken  or  poisoned  in  one  county,  and  after 
had  died  in  another  county,  no  sufficient  indictment  could  thereof 
have  been  taken  in  either  of  said  counties,  because,  by  the 
law  of  the  realm,  the  jurors  of  one  county  could  not  inquire  of 
that  which  was  done  in  another  county.  It  is  provided  in  that 
act  that  the  indictment  may  betaken  in  that  county  where  the 
death  doth  hapjien."  The  reason  assigned  for  this  i)assage 
from  the  Institutes  can  hardly  be  accepted  as  sound  at  this  day 
— that  is,  that  the  jurors  of  one  county  can  not  inquire  of  that 
Avhich  is  done  in  another  county.  But  we  have  the  authority 
of  the  great  Sir  Mathew  Hale  to  tlie  contrary  of  this  doctrine 
of  Coke.  In  1  Hale  P.  C.  426,  the  author  sa3's :  "At  conunon 
law,  if  a  man  had  been  stricken  in  one  county  and  died  in  an- 
other, it  was  doubtful  whether  he  were  indictable  or  triable  in 
either;  but  the  common  opinion  was  that  he  might  be  indicted 
where  the  stroke  was  given,  for  the  death  is  but  a  conse(juent, 
and  might  be  found  in  another  county;"  and  he  cites  lor  tliis 
the  Year  Books  9  Edw.  IV.,  p.  48,  and  7  Hen.  VII.,  p.  8.  And 
he  then  proceeds  to  say  that  "  if  the  party  dieil  in  another 
county,  the  body  was  removed  into  the  county  where  the  stroke 
was  given  for  the  coroner  to  take  an  inquest  sxiper  vi»um  corpo- 
ris^  "  But  now,"  says  the  author,  "  by  Stat.  2  and  3  Edw, 
VI.,  ch.  24,  the  justices  or  coroner  of  the  county  where  the 
party  died  shall  inquire  and  proceed  as  if  the  stroke  had  been 
in  the  same  county  where  the  party  died; "  thus  showing  that 
the  common  law  was  changed  by  Stat.  2  and  3  Edw.  VI.,  but 


L'Py 


'!  HHP, 


STOUT  V.  STATE. 


403 


that  our  statute  of  1S09  (chapter  138,  section  17)  is  simply 
declaratory  of  the  common  law;  and  according  to  that  law,  and 
to  what  was  plainly  Sir  Mathew  Ilale's  conclusion  from  the 
history  of  the  law,  the  crime  in  this  case  was  committed  where 
the  fatal  stroke  was  given,  and  the  place  of  the  consequent 
death  was  quite  immaterial.     The  authority  of  the  opinion  of 
Lord  Hale  so  plainly  indicated  in  the  passage  from  liis  work 
just  quoted  has  been  fully  recognized  by  subsequent  writers  of 
high  repute.    Thus,  in  2  Hawk.  P.  C,  p.  120,  §  13,  the  author 
says:    "It  is  said  by  some  that  the  death  of  one  who  died  in 
one  county  of  the  wound  given  in  another  was  not  indictable 
at  all  at  common  law,  because  the  otfense  was  not  comi)lete  in 
either  county,  and  the  jury  could  inquire  only  of  what  hap- 
pened in  their  own  county.     But  it  hatli  been  holden  b^'  others 
that,  if  the  corpse  were  carried  into  the  county  where  the  stroke 
was  given,  the  wdiole  might  be  inquired  of  by  a  jury  of  the 
same  county."    And  so  in  1  East  Cr.  Law  301,  that  very  learned 
and  accurate  writer  sa3's :    "  Where  the  stroke  and  death  are 
indifferent  counties,  it  was  doubtful  at  common  law  whether 
the  offender  could  be  tried  at  all,  the  offense  not  being  com- 
plete in  either,  though  the  more  common  opinion  was  that  ho 
might  be  indicted  where  the  stroke  was  given,  for  that  alone  is 
the  act  of  the  party;  and  the  death  is  but  a  consequence,  and 
might  be  found,  though  in  another  county,  and  the  body  was 
removed  into  the  county  where  the  stroke  was  given."     It  is 
not  necessary  that  we  should  cite  other  text- writers  upon  this 
subject;  those  we  have  cited  sufficiently  indicating  the  state  of 
the  English  common  law  in  regard  to  the  question  here  in- 
volved, tliough  expressed  with  the  doubts  formerly  entertained 
b}'  some. 

The  question,  however,  does  not  rest  on  the  authority  of 
text-writers  alone;  judicial  decisions  are  not  wanting  upon  the 
subject.  In  the  case  of  licv  v.  Ilargrave,  5  Car.  &  P.  170,  tried 
before  Mr.  Justice  Patteson  in  1831,  an  indictment  of  man- 
slaughter charged  that  A,  gave  the  deceased  divers  mortal 
blows  at  P.,  in  the  county  of  M.,  and  that  the  deceased  lan- 
guished and  died  at  D.,  in  the  county  of  K.,  and  that  the  pris- 
oner was  then  and  there  aiding  in  the  commission  of  a  felony. 
Upon  objection  to  the  sufficiency  of  the  indictment,  the  learned 
justice,  in  overruling  the  objection,  said :  "  The  giving  of  the 
blows  which  caused  the  death  constituted  the  felonv.    The 


#11 


■'< .  m 

■  ■Ml 

1  ,"   ,:^ 


404 


AMERICAN  CRIMINAL  REPORTS. 


languishing  alone,  which  is  not  any  part  of  the  offense,  is  laid 
in  Kent.  The  indictment  states  that  the  prisoner  was  then  and 
there  present,  aiding  and  abetting  in  tne  commission  of  the 
felony.  That  must,  of  course,  apply  to  the  parish  of  All  Saints 
where  the  blows,  which  constitute  the  felony,  were  given."  And 
there  are  many  cases  in  this  countr}'  which  hold  that  upon  the 
definition  of  murder,  and  the  elements  that  enter  into  and  con- 
stitute the  crime,  the  place  of  the  death  is  wholly  immaterial 
in  the  prosecution  of  the  offender,  except  in  those  cases  spe- 
cially provided  for  by  positive  statute;  in  other  words,  tliat  the 
giving  of  the  mortal  blow  that  caused  the  death  constitutes 
the  felony,  and  the  removal  of  the  corpse  to  the  county  in 
which  the  mortal  stroke  was  inflicted  is  not  required  for  any 
pui  pose  connected  with  the  jurisdiction  of  the  court  over  the 
crime  or  the  offender.  And  without  stating  the  facts  of  each 
case  wherein  these  principles  have  been  considered  and  main- 
tained, we  may  refer  to  the  cases  of  Jiilei/  v.  State,  9  Humph. 
(Tenn.)  64C;  Peojjle  v.  Gill,  6  Cal.  637;  Minnesota  v.  Gessert, 
21  Minn.  369;  State  v  Bov^en,  16  Kan.  476;  Green  v.  State,  60 
Ala.  40.  In  the  very  celebrated  case  of  United  States  v.  Gui- 
teau,  tried  in  the  District  of  Columbia  in  1881-82,  and  reported 
in  1  Mackey  498,  this  question  of  jurisdiction  was  extensively 
discussed  by  counsel  and  elaborately  considered  by  the  court. 
The  accused  was  indicted  under  Section  5339,  Rev.  Stat.  U.  S., 
for  the  murder,  by  shooting,  in  the  District  of  Columljia,  of  the 
then  President  of  the  United  States,  James  A.  Garfield,  who, 
after  receiving  the  mortal  wound,  languished  for  more  than  two 
months,  and  died  in  the  State  of  New  Jersey,  where  he  had  l>een 
taken  in  the  hope  of  relief.  The  contention  there  was  on  the  part 
of  the  prisoner  that  the  murder  was  committed  only  partly  with- 
in the  District  of  Columbia  and  partly  within  the  State  of  Xew 
Jersey,  and  therefore  there  was  no  jurisdiction  in  the  court  in 
the  District  of  Columbia  to  try  and  convict  the  prisoner  for 
his  crime.  But  this  contention  was  overruled.  It  was  first 
considered  and  overruled  in  the  criminal  court,  in  a  verv  learned 
and  able  opinion  by  Mr.  Justice  Cox,Jbefore  whom  the  case  was 
tried;  and,  after  conviction,  the  case  was  taken  to  a  session  in 
general  term  of  the  supreme  court  of  the  district,  where  the 
decision  of  the  trial  court  was  fully  reviewed,  and  the  conclu- 
sion of  Mr.  Justice  Cox  concurred  in,  though  for  reasons  some- 
what variant  from  those  employed  by  the  trial  judge. 


STOUT  V.  STATE. 


405 


In  the  opinion  of  Judge  Cox,  the  common  law  authorities 
sustained  the  jurisdiction,  but  he  was  furthor  of  opinion 
that  the  statute  of  2  Geo.  II.,  ch.  21,  was  in  force  in  Maryland 
at  the  date  of  the  cession  of  the  district  by  this  state,  and  con- 
sequently was  still  in  force  in  the  district,  and  that  that  stat- 
ute fully  applied  to  the  case;  and,  while  the  court  of  review, 
sitting  in  general  term,  agreed  in  the  conclusion  arrived  at  by 
Judge  Cox,  and  also  in  the  proposition  that  the  common  law 
was  sufficient  for  the  case,  it  held  that,  by  the  terms  of  the 
statute  of  the  United  States  applicable  to  the  District  of  Co- 
lumbia, which  provides  that  in  all  places  or  districts  under  the 
sole  and  exclusive  jurisdiction  of  the  United  States,  if  a  party 
shall  commit  the  crime  of  murder,  such  person,  on  being  con- 
victed, shall  sutfer  death,  the  party  inflicting  the  mortal  wound 
in  the  district  is  guilty  of  murder,  though  the  death  of  the  vic- 
tim subsequently  occurs,  in  consequence  of  the  wound,  in  any 
of  the  states  of  the  Union;  that  in  such  case,  the  crime  of  mur- 
der becomes  complete  in  the  district  where  the  mortal  Avound 
was  given,  in  the  contemplation  of  the  statute,  irrespective  of  the 
place  of  the  death;  thus  holding  that  the  mortal  stroke  which 
caused  the  death  constituted  the  felony,  and  that  the  place  of 
death  was  immaterial  to  the  Jurisdiction  of  the  court  to  try  and 
convict  the  otfender.  But  that  was  not  all  that  occurred.  After 
the  conviction  and  review  had  at  the  general  term  an  appli- 
cation was  made  to  the  late  Mr.  Justice  Bradley  of  the  Supreme 
Court  of  the  United  States  for  a  habeas  corpus,  on  the  ground 
that  the  Criminal  Court  of  the  District  of  Columbia  had  no  ju- 
risdiction of  the  offense,  and  therefore  the  conviction  was  void. 
But  that  learned  justice,  upon  consideration  of  the  case,  con- 
curred with  the  courts  of  the  District  of  Columbia,  in  holding 
that  there  was  jurisdiction  of  the  offense,  and  that  the  party 
had  been  properly  tried,  and  therefore  dismissed  the  petition. 
And  thus  ended  that  memorable  case.  Both  upon  reason  and 
authority,  therefore,  this  court  is  of  opinion  that  the  court  be- 
low was  entirely  correct  in  overruling  the  demurrer  to  each 
and  all  of  the  counts  of  the  indictment;  and,  as  there  is  no 
cause  assigned  in  supjwrt  of  the  motion  in  arrest  of  judgment 
that  could  be  considered  on  such  motion,  the  court  was  also 
correct  in  overruling  that  motion. 

2.  The  second  question  presented  is  one  of  practice.  It 
arose  upon  a  motion  by  the  prisoner  to  discharge  the  jury 


' '      '.'.V  '.  :■  .  "'■  :  :■ ' 

.'1 

. 

Ini^i: 


It 


IVU 


406 


AMERICAN  CRIMINAL  REPORTS. 


during  the  course  of  trial,  because  of  alleged  separation  of  t\w 
jury  in  the  recess  of  the  court.     It  appears  that  the  entire 
panel  of  twelve  were  placed  in  charge  of  the  sheriff  during  a 
recess  of  the  court  from  4.30  p.  m.  to  7.30  p.  m.,  and  were  taken 
to  quarters  provided  at  a  hotel  in  the  town.    Upon  reaching 
the  hotel,  one  of  the  jurors  was  suffering  so  much  from  illness 
that  he  had  to  be  allowed  to  go  to  bed,  but  he  was  alone,  and  was 
locked  in  the  room  by  the  sheriff.    At  the  hour  of  re-assembling 
of  the  court,  the  other  eleven  jurors  were  taken  into  the  court, 
but,  in  consequence  of  the  inability  of  the  sick  juror  to  be 
present,  the  court  adjourned  until  10  o'clock  a.  m.,  the  next 
day,  at  which  time  the  whole  panel  attended.     It  is  not  pre- 
tended or  suggested  that  the  sick  juror  was  a])proached  by  any 
one,  or  tampered  with  in   any  manner.     The  motion  to  dis- 
charge the  panel  was  founded  upon  the  simple  fact  that  the 
sick  juror  had  been  separated  from  his  fellow  juroi's  before  ver- 
dict rendered.     In  overruling  this  motion,  the  court  below 
certainly  committed  no  error.     In  the  trial  of  cajntal  cases 
even,  there  are  many  occasions  when  in  reason,  and  a  pro|)er 
regard  to  the  needs  of  humanity,  it  may  become  necessary  to 
allow  a  temporary  separation  of  the  jury,  without  necessarily 
breaking  up  the  trial,  and   that,  even  after  the  jury  have 
retired  to  consider  of  their  verdict;  otherwise  protracted  trials 
could  seldom  be  brought  to  a  final  conclusion.     Of  course,  the 
separation  should  only  be  allowed  when  attended  with  those 
precautions  and  safeguards  necessary  to  secure  entire  freedom 
from  approach  or  external  influence  of  any  kind,    ^eal  v.  State, 
64  Ga.  272;  State  v.  Payton,  90  Mo.  220;  2  S.  W.  Rep.  2l)i; 
Coleman  v.  State,  59  Miss.  484;  State  v.  O'Brien.,  7  R.  I.  337; 
Goerseti  v.  Commonwealth,  106  Pa.  St.  477;  People  v.  Bonncy, 
19  Cal.  426;  1  Bish.  Cr.  Pro.,  §§  993,  994;  12  Am.  and  Eng. 
Encycl.  L.  371.     But  each  case  rests  upon  its  own  peculiar  cir- 
cumstances, and  is   within  the  sound  discretion  of  the  trial 
court;  and  is  therefore   not  the  subject  of  appellate  review, 
except  where  it  is  affirmatively  shown  that  the  party  has  been 
prejudiced  by  the  action  of  the  court.    It  follows  that  the 
judgment  below  must  be  affirmed. 


Note.  — Jurisdiction.— VfhiXe  a  positive  distinction  exists  between  cases 
where  a  mortal  wound  is  inflicted  in  one  jurisdiction  and  the  consequent 
deatli  ensues  in  another,  and  cases  in  wliich  the  accused  in  one  state  puts 
in  force  an  agency  which  becomes  effectual  in  another,  yet  there  is  su  uiuch 


-1  :    ■     )|.v,|].;??'fH 


STOUT  V.  STATE. 


407 


that  is  valuable  and  pertinent  to  the  consideration  of  the  principal  case,  that 
we  feel  justified  in  noting  specially  the  able  opinion  delivered  by  Shepard, 
C.  J.,  in  State  v.  Hall,  114  N.  C.  909,  in  which  the  court  held  that  "  there  is 
no  jurisdiction  in  North  Carolina  of  the  crime  committed  by  persons  who, 
while  standing  in  that  state,  shoot  across  the  state  boundary  and  kill  a  per- 
son in  Tennessee."    The  learned  chief  justice  said:    "  It  is  a  general  prin- 
ciple of  universal  acceptation  that  one  state  or  sovereignty  can  not  enforce 
the  penal  or  criminal  laws  of  another,  or  punish  crimes  or  offenses  com- 
mitted in  and  against  another  state  or  sovereignty.    Ror.  Intorst  Law,  308; 
Story,  Confl.  Law,  620-633;  The  Antelope,  10  Wheat  66-123;  State  v.  Knight, 
Tayl.  (N.  C.)  65;  State  v.  Brown,  1  Hayw.  (N.  C.)  100;  State  v.  Cutshall,  110 
N.  C.  538;  15  S.  E.  261,    There  may,  by  reason  of  '  a  statute  or  the  nature 
of  a  particular  case.'  be  apparent  exceptions  to  the  rule;  as,  if  '  one  per- 
sonally out  of  the  country  puts  in  motion  a  force  which  takes  effect  in  it,  he 
is  answenible  where  the  evil  is  done,  though  his  presence  was  elsewhere.' 
So,  wliere  a  man,  standing  beyond  the  outer  line  of  a  territory,  by  discharg- 
ing a  ball  over  the  line  kills  another  within  it;  or  himself,  being  abroad,  cir- 
culates libel  here,  or  in  like  manner  obtains  here  goods  by  false  pretenses,  or 
does  any  other  crime  in  our  own  locality  against  our  laws — he  is  punishable, 
though  absent,  the  same  as  if  he  were  present.'    1  Bish.  Cr.  Law,  109,  110; 
State  V.  Cutslmll,  supra.    These  cases,  however,  are  but  instances  of  crimes 
which  fu-e  considered  by  the  law  to  have  been  committed  within  our  terri- 
tory, and  in  no  wise  conflict  with  the  general  principle  to  which  we  have 
referred.    Starting,  then,  with  this  fundamental  principle,  and  avoiding  a 
general  discussion  of  the  subject  of  extra-territorial  crime,  we  will  at  once 
proceed  to  an  examination  of  the  interesting  question  which  has  been  sub- 
mitted for  our  determination.    It  seems  to  have  been  a  matter  of  doubt,  in 
ancient  times,  whether,  if  a  blow  were  struck  in  one  country  and  death 
ensued  in  another,  the  offender  could  be  prosecuted  in  either,  though  accord- 
ing to  Lord  Hale  (P.  C.  426),  '  the  more  common  opinion  was  that  he  might 
be  indicted  where  the  stroke  was  given.'    This  difficulty,  as  stated  by  Mr. 
Starkie,  was  sought  to  he  avoided  by  the  legal  device  '  of  carrying  the  dead 
body  back  into  the  county  where  the  blow  was  struck,  and  the  jury  might 
there,'  he  adds,  '  inquire  both  of  the  stroke  and  death.'    1  Starkie,  Cr.  PI. 
(2d  Ed.)  304;  1  Hawk.  P.  C.  13;  1  East  P.  C.  361.    But  to  remove  all  doubt 
in  respect  to  a  matter  of  such  grave  importance  it  was  enacted  by  the  stat- 
ute, 2  and  3  Edw.  VI.,  that  the  murderer  might  be  tried  in  the  county  where 
the  death  occurred.    This  statute,  either  as  a  part  of  the  common  law  or  by 
re-enactment,  is  in  force  in  many  of  the  states  of  the  Union,  and,  as  appli- 
cable to  counties  within  the  same  state,  its  validity  has  never  been  questioned. 
See  Acts  1891,  c.68,  and  also  Code  Tenn.,  §  5801.     But,  where  its  provisions 
have  been  extended  so  as  to  affect  the  jurisdiction  of  the  different  states,  its 
constitutionality  has  been  vigorously  assailed.    Such  legislation,  however, 
has  been  veiy  generally,  if  not,  indeed,  uniformly,  sustained.    Simpson  v. 
State,  4  Humph.  461;  Oreen  v.  State,  66  Ala.  40;  Com.  v.  Malcoon,  101 
Mass.  1;  Tyler  v.  People,  8  Mich.  826;  Hcmmaker  v.  State,  12  Mo.  453; 
People  V.  Burke,  11  Wend.  129;  Hunter  v.  State,  40  N.  J.  Law.  495.    Stat- 
utes of  this  character  '  are  founded  upon  the  general  power  of  the  legisla- 
ture, except  so  far  as  restrained  by  the  constitution  of  the  commonwealth 
and  the  United  States,  to  declare  any  wilful  or  negligent  act  which  causes 
an  injury  to  person  or  property  within  its  territory  to  be  a  crime.'    Kerr, 


'  lm\ 

'; ,    .1 

i  1 


^:l' 


408 


AMERICAN  CRIMINAL  REPORTS. 


5-     ,i' 

'5    fe 


Horn.  47.  See,  also,  remarks  of  Justice  Bradley  in  the  holwas  corpm  pro- 
ceedings of  Guiteau,  reported  in  the  notes  to  the  case  of  U.  S.  v.  Gniteau, 
47  Am.  Rep.  247;  1  Mackey  498.  In  many  of  the  states  there  are  also  stat- 
utes substantially  providing  that  where  the  death  occurs  outsitle  of  one 
state,  by  reason  of  a  stroke  given  in  another,  the  latter  state  may  have 
jurisdiction. 

The  validity  of  these  statutes  seems  to  be  undisputed;  and  indcc^l  it  has 
been  held  in  many  jurisdictions  that  such  legislation  is  but  an  aftinnance 
of  the  common  law.  This  view  is  taken  by  the  Supreme  Court  of  tlie  Dis- 
trict of  Columbia  in  Guiteau's  Case,  supra,  in  which  the  authorities  are 
collected,  and  their  principle  stated  with  much  force  by  Justice  Janifs.  It 
is  manifest  that  statutes  of  this  nature  are  only  applicable  to  cases  wliere 
the  stroke  and  the  death  occur  in  different  jurisdictions;  and  it  is  e(|ually 
clear  that,  where  the  stroke  and  the  death  occur  in  the  same  state,  the  of- 
fense of  murder  at  common  law  is  there  complete,  and  the  courts  of  that 
state  can  alone  try  the  offender  for  that  specific  common  law  crime." 

Where  the  indictment  charged  the  defendant  with  inflicting  the  mortal 
blow  in  New  York,  and  the  death  ensued  in  New  Jei-sey,  the  court  of  the 
latter  state  held  that  no  act  was  done  therein  by  the  defendant,  inasmuch 
as  he  sent  no  missile,  or  letter,  or  message,  that  operated  as  an  act  within 
the  state,  but  the  coming  of  the  party  injured  into  the  state  aftirward, 
was  his  own  voluntary  act,  and  in  no  way  the  act  of  the  defendant.  The 
court  specially  distinguished  the  case  from  that  of  a  man  standing  on  the 
New  York  side  of  the  line  and  shooting  across  the  border  killin}-  a  person 
in  New  Jersey,  the  killing  in  such  case  being  the  defendant's  act  within 
the  latter  state,  the  passing  of  the  ball  after  it  crossed  the  boundary  and  its 
actual  striking  being  the  continuous  act  of  the  defendant.  State  v.  Carter, 
(1859),  27  N.  J.  L.  499,  note  28  L.  R.  A.  63, 

Venue  of  other  offenses. — The  crime  of  obtaining  money  or  property 
under  false  pretenses  is  consummated  where  the  money  or  property  is  re- 
ceived, without  regard  to  where  the  pretenses  are  made.  State  r.  Sltaeffer, 
89  Mo.  271 ;  6  Am.  Cr.  Rep.  859.  Receiving  stolen  property,  knowing  it  to  be 
stolen,  is  a  complete  offense  distinct  from  the  larceny  of  the  same  pr()[)erty, 
and  jurisdiction  of  tlie  offense  is  in  the  court  of  the  county  in  wliicli  the 
stolen  property  was  received,  and  not  in  that  of  the  county  in  which  the 
larceny  was  committed.    Allison  v.  Com,,  83  Ky.  254;  7  Am.  Cr.  Rep.  301. 


Commonwealth   v.  Hayden, 

(163  Mass.  453.) 

Polyoamy:  Evidence— Proof  of  marriage. 

On  a  trial  for  polygamy,  a  letter,  purportifi;  ^o  be  written  and  signed  by 
defendant,  and  identified  aa  his  handwriting,  and  addressed  to  his 
mother-in-law,  is  competent  against  him. 

The  testimony  of  persons  present  at  a  marriage,  including  the  contract- 
ing parties,  is  competent  to  prove  it. 


I  ^^ilT";^' 


v-2)m  pro. 
!'•  Giiiteav, 
»Iso  8tat- 
litle  of  one 
jiuay  have 

jlt'eil  it  has 
ptiiinance 
f  tlie  Dis- 
lorities  are 
anu'8.    It 
Ksi'H  wliere 
is  t'()ually 
itc,  tlie  of- 
Ji-ts  of  that 
inie." 
tilt'  mortal 
»urt  of  the 
ina.simich 
act  witliin 
aftirvvard, 
lant.    The 
li'ig  on  the 
!«■  a  person 
act  within 
ary  aiid  its 
:'  V.  Carter, 

r  property 
|)orty  is  re- 
f.  Sliaeffer, 
ing  it  to  be 
?  proi)erty, 
whidi  the 
wliich  the 
.  Ki'p.  301. 


3igned  by 
id  to  liis 

contract- 


COMMON  WEALTH  v.  HAYDEN. 


409 


3.  Though  tliere  is  no  proof  of  his  ordination,  the  testimony  of  one  that  he 

is  a  minister  of  the  gospel,  and  that  he  performed  a  marriage  ceremony, 
is  n(hnis8ible. 

4.  An  honest  and  reasonable  belief  in  the  death  of  a  former  wife  or  hus- 

band is  not  a  defense  to  a  prosecution  for  polygamy. 

Exceptions  from  Superior  Court,  Suffolk  County. 
Maurice  A.  Hayden  was  convicted  of  polygamy,  and  ex- 
cepts.   Exceptions  overruled. 

3L  J.  /Sughrue,  First  Assistant  District  Attorney,  for  the 
Commonwealth. 
C.  P.  Sullivan  and  F.  F.  Sullivan,  for  defendant. 

Bakker,  J.  1.  Special  police  officers  are  not  exempt  from 
service  as  grand  jurors.  Pub.  St.,  c.  170,  §  2.  Nor  does  the 
fact  that  a  juror  is  exempt,  absolutely  disqualify  him  from 
service.  He  may  be  excused  at  his  own  election,  or  may  be 
excepted  to  by  any  party;  but,  if  he  serves,  the  action  of  the 
grand  jury  or  traverse  jury  is  not  made  void.  2funroe  v. 
Briy/iam,  19  Pick.  368.  See  also,  Wassum  v.  Feeney,  121  Mass. 
93;  Moebs  v.  Wo'ffsohn,  143  Mass.  130. 

2.  There  is  neither  authority  nor  reason  for  the  contention 
that  the  indictment  was  void  because  one  of  the  grand  jurors 
appeared  as  a  witness  before  the  grand  jury  of  which  he  was  a 
member,  at  the  same  sitting  of  the  court  at  which  the  indict- 
ment was  presented.  A  grand  jury  may  properly  act  upon 
the  personal  knowledge  of  any  of  its  members,  communicated 
to  his  fellows  under  no  other  sanction  than  the  grand  juror's 
oath.  Com.  v.  Woodward,  157  Mass.  516;  32  N.  E.  939.  And 
there  is  no  impropriety  or  wrong  to  the  accused  in  having  a 
grand  juror,  who  has  personal  knowledge  as  to  matters  inquired 
of  by  his  grand  jury,  sworn,  and  testify  as  a  witness.  Indeed, 
there  may,  under  our  practice,  be  some  incidental  benefit  to 
the  accused  in  that  course,  as  in  that  case  his  name  will  be 
foantl  in  the  list  of  witness3s  which  is  to  be  filed  of  record  by 
the  clerk.    Pub.  St.,  c.  213,  §  9. 

3.  The  motion  to  dismiss,  by  which  alone  the  two  questions 
above  considered  were  raised,  must  also  have  been  overruled, 
for  the  technical  reason  that  neither  of  the  facts  alleged  in  it 
as  avoiding  the  indictment  appeared  upon  the  record  of  the 
cause,  and  so  could  not  be  availed  of  by  a  motion  to  dismiss. 
Com.  V.  Fredericks,  119  Mass.  199,  204,  and  cases  cited. 


^ 


i] 


it;; 


;^'::! 


410 


AMERICAN  CRIMINAL  REPORTS. 


4.  As  the  writing  purporting  to  be  a  letter  written  and 
signed  by  the  defendant  was  identified  as  his  handwriting,  it 
was  competent  evidence  against  him.  Stone  v.  Sanhoni,  104 
Mass.  319,  324;   Wiggin  v.  Railroad  Co.,  120  Mass.  2U1. 

5.  The  testimony  of  the  women  with  whom  the  defendant 
was  accused  of  having  unlawfully  intermarried  while  his 
former  wile  was  living,  was  competent  to  prove  the  unlawful 
marriage.  The  testimony  of  witnesses  present  at  a  marriage  is 
comjietent  to  prove  it  {Com  v.  Norcross,  9  Mass.  492;  Com.  v. 
Littlejohn,  15  Mass.  163);  and  tiiis  must  be  held  to  include  the 
testimony  of  either  of  the  contracting  parties. 

6.  The  attested  copy  of  the  record  of  the  marriage  of  the 
defendant  to  Annie  Dillon,  from  the  records  of  the  city  regis- 
trar of  Boston,  certified  to  by  the  assistant  registrar,  was  ad- 
missible in  evidence.  The  records  of  town  clerks  relative  to 
marriages  are  made  by  statute  prima  facie  evidence  in  legal 
proceedings  of  the  facts  recorded,  and  a  certificate  signed  by 
the  clerk  is  made  admissible  as  evidence  of  the  record.  Pub. 
St.  c.  32,  §  11.  See,  also,  Pub.  St.  c.  145,  §  29.  Towns  and 
cities  of  more  than  10,000  inhabitants  may  choose  a  person 
other  than  the  clerk  to  be  registrar,  and  in  that  case  the  pro- 
visions concerning  clerks  apply  to  the  registrar.  By  St.  18S5, 
c.  206,  §  5,  the  city  registrar  of  Boston  has  power  to  appoint 
his  own  subordinates.  General  authority  to  make  ordinances 
concerning  registrars  and  registration  is  given  by  Pub.  St.  e. 
32,  §  18.  By  the  Kevised  Ordinances  of  the  city  of  Boston  of 
1885,  (chapter  20,  §  3,)  there  are  allowed  to  the  city  registrar, 
for  the  discharge  of  the  duties  of  his  department,  three  clerks 
for  copying  and  three  for  recording.  By  St.  1892,  c.  314,  §  2, 
the  city  registrar  is  required  to  appoint  from  his  subordinates 
two  assistant  city  registrars,  and  the  same  section  provides 
that  the  certificates  and  attestations  of  either  assistant  city 
registrar  shall  have  the  same  force  and  efl'ect  as  those  of  the 
city  registrar.  The  result  is  that  the  certificate  of  the  assist- 
ant city  registrar,  admitted  in  evidence  under  the  defendant's 
exception,  was  plainly  competent. 

7.  In  proof  of  the  defendant's  unlawful  marriage,  charged 
in  the  indictment,  the  government  was  allowed,  against  his  ob- 
jection and  exception,  to  put  in  the  testimony  of  a  witness  that 
he  was  a  clergyman  in  Boston,  and  an  ordained  minister  and 
pastor  of  a  Congregational  church,  and  that  he  had  been  such 


•I  ^"  im 


COMMONWEALTH  v.  HAYDEN. 


411 


mstor  for  many  years.  The  defendant  contends  that  the  tet- 
tiinony  of  this  witness  was  not  competent  to  prove  his  author- 
ity to  bind  parties  in  marriage.  "  A  minister  of  the  gospel, 
orduined  according  to  the  usage  of  his  denomination,  who  re- 
sides in  the  commonwealth  and  continues  to  perform  the  func- 
tions of  his  office,"  may  solemnize  marriages.  Pub.  St.  c.  145, 
§22.  Whether  the  usage  of  the  Congregational  denomination 
requires  a  record  to  be  made  of  the  ordination  of  a  minister 
does  not  ap|iear  in  this  cause,  and  is  not  a  matter  of  Avhich  we 
liave  judicial  knowledge.  The  evidence  was  at  least  compe- 
tent to  prove  that  the  witness  was  de  facto  discharging  the 
office  of  an  ordained  minister,  and  under  the  peculiar  statute 
regulating  the  proof  of  marriages  in  court  the  testimony  so 
excei)ted  to  was  all  "circumstantial  or  presumptive  evidence," 
from  which  the  fact  of  marriage  might  be  inferred,  and  so  was 
competent  under  the  statute  (Pub.  St.  c.  145,  §  31). 

8.  The  different  requests  for  ruling?,  founded  upon  the  con- 
tention that  the  defendant  was  not  guilty  of  polygamy  if,  at 
the  time  he  contracted  his  third  marriage,  he  had  a  honafide 
and  reasonable  belief  that  his  second  wife  was  dead,  were 
l)roperly  denied.  We  consider  that  question  to  have  been  set- 
tled in  this  jurisdiction  by  the  decision  in  Com.  v.  Mash,  7 
Mete.  (Mass.)  472,  rendered  in  the  year  1844,  in  which,  speak- 
ing of  a  statute  substantially  like  that  under  which  the  present 
defendant  was  indicted,  this  court  said  that  '*  it  was  not  the 
intention  of  the  law  to  make  the  legality  of  a  second  marriage 
whilst  the  husband  or  wife  is  in  fact  living  depend  upon  igno- 
rance of  such  party's  being  alive,  or  even  upon  an  honest  belief 
of  such  person's  death."  See  Rev.  St.  c.  130,  §§  2,  3 ;  Gen.  St. 
c.  16.5,  §§  4,  5 ;  Pub.  St.  c.  207,  §§  4,  5.  This  statement  has 
been  since  acted  ujion  as  a  part  of  our  system  of  law  regu- 
lating marriages  and  controlling  persons  contemplating  mar- 
riage. See  Com.  v.  Munson,  127  Mass.  459,  470.  If  it  ought 
to  be  changed,  the  change  should  come  from  the  legislature. 
We  therefore  decline  to  treat  the  defendant's  contention  as  an 
open  question  in  this  Commonwealth.  If  the  reasons  which, 
after  much  difference  of  opinion,  have  led  to  the  final  declara- 
tion in  England  that  an  honest  and  reasonable  belief  in  the 
death  of  the  former  wife  or  husband  is  a  good  defense  to  a 
prosecution  for  polygamy  should  be  dealt  with  here,  it  should 
be  by  that  department  of  the  government  which  has  the  law- 


inpwr^ 


412 


AMERICAN  CRIMINAL  REPORTS. 


making  power.     See  Reg.  v.  Tohon,  23  Q.  B.  Div.  1G8,  10  Cox 
Cr.  Cas.  029.    Exceptions  overruled. 

^0'ns..—  What  conatitutcs. — When  persons  are  man-ied,  one  of  win  mi  is 
over  and  the  other  under  the  age  of  consent,  the  former  is  Itoiuul  by  tlie 
marriage  unless  they  separate  by  mutual  consent  before  the  other  rciulies 
lawful  age,  and  do  not  cohabit  afterward,  or  unless  the  other  rtfuscs  ton- 
sent  on  arriving  at  that  age.  And  a  second  marriaga  by  ti»e  for.iicr,  in  the 
absence  of  such  mutual  separation  or  of  such  refusal  to  consent,  is  l)in;inny. 
People  V.  Slack,  15  Mich.  193,  in  which  Judge  Cooley  delivered  the  opinion 
of  the  court,  and  the  case  is  a  most  conclusive  and  highly  instructive  one, 
See,  also.  State  v.  Cone,  86  Wis.  498;  BcggH  v.  State,  55  Ala.  108.  In  7^c(;^j/e 
V.  Bevera,  99  Cal.  286,  it  is  held  that  marriage  of  a  person  under  the  i\>;e  of 
consent  can  only  be  annulled  by  the  person  who  did  have  the  capiuity  to 
consent,  and  if  it  is  followed  by  cohabitation  of  the  married  parties  after 
arriving  at  the  proper  age  is  sulHcient  to  supixirt  a  prosecution  for  bigamy 
upon  a  second  marriage  by  one  of  the  parties,  while  the  first  marriage  exists. 

A  reUgiouti  belief  in,  no  clefenae.  —A  crime  is  none  the  11*88  so.  nor  lesH 
odious,  because  sanctioned  by  what  any  particular  sect  may  designate  as 
religion.     Davia  v.  Beaaon,  133  U.  8.  333;  8  Am.  Cr.  Rep.  89. 

Venue.— The  venue  of  the  offense  of  bigamy  is  in  the  county  where  the 
marriage  occurs.    Brown  v.  State  (Tex.  Cr.  App.),  27  S.  W.  137. 

Evidence. — The  evidence  must  show  two  successive  marriag(>s — one  legal 
and  innocent,  the  otlicr  penal— against  the  defendant.  Each  must  be  actual. 
Cohabitation,  reputation  and  declarations  of  the  parties,  though  raising  a 
presumption  of  marriage  for  many  purjTOses,  are  insufHcient  alone  to  estab- 
lish a  common  law  marriage  for  the  purpose  of  sustaining  a  conviction  for 
bigamy  by  reason  of  a  subsequent  marriage.  Hiler  v.  People,  l-'iO  111.  ')\\\ 
2  Whart.  (Jrim.  Law  (9th  Ed.),  Sec.  1696;  1  Greenleaf  on  Evidence  (!)th  Ed.), 
Sec.  49;  Commonwealth  v.  Littlejohn,  15  Mass.  162;  Case  v.  Case,  1 7  Cal.  .")i»8; 
Lambert  v.  People,  5  Mich.  349;  Stephens  Digest  of  Law  of  Evidence,  p.  Ill, 
art.  53;  Haya  v.  People.  25  N.  Y.  390;  Hutchina  v.  Kimmcl,  31  Mich.  liO, 
The  wife  of  a  defendant  is  an  incompetent  witness.  Miner  v.  Pcoplr.  38  III. 
60;  Moore  on  Crim.  Law,  Sec.  76.  p.  63;  2  Whart.  on  Crim.  Liiw  (!)tli  Ed.) 
Sec.  1709.  Where  the  former  of  two  marriages  relied  on  to  convict  of  big- 
amy is  a  common  law  ma^Tiage,  a  contract  per  verba  de  prcaenti,  with 
cohabitation,  and  all  elements  necessary  to  constitute  such  common  law 
marriage,  must  be  proved  in  order  to  sustain  conviction.  Harinan  v.  Har- 
man,  16  111.  85;  Hayea  v.  People,  supra. 


Commonwealth  v.  Linn  et  ax,. 

(158  Pa.  St.  22.) 

NtJlSANCE:  Public — What  constitutes— Profane  swearing  on  street. 

1.  Public  swearing  is  a  nuisance  at  common  law,  but  to  be  indictable  it  must 
be  in  a  public  place,  and  an  annoyance  to  the  public.    The  indictment 


w^^wm 


COMMONWEALTH  v.  LINN  ET  AL. 


41  ;3 


mnst  cliarge  as  an  t't.H«»ntinl  nnrl  nn  indiMpensable  fnct  that  the  profiino 
lnn;c»i»K'i  wua  uttered  in  tlie  presence  and  within  the  hearing  of  tl»e  citi- 
zens present. 
2.  Animlictniunt  charged  that  defendants  "  did,  on  the  public  streets  and 
liighways,  profanely  curse  and  swear  and  take  the  name  of  God  in  vain, 
to  tlie  evil  example  and  to  the  common  nuisance  of  the  good  citiztms  of 
the  State  of  Pennsylvania,  and  contrary  to  the  form  of  tlie  Act  of  As- 
8eiiil>ly  in  such  cases  made  and  provided."  Held,  that  tlie  indictment 
could  not  bi!  sustained  either  at  common  law,  or  under  the  Crimes  Act 
of  Miireli  31,  18UD,  i;  30,  P.  L.  'ddi,  prohibiting  blasphemy,  or  under  the 
Act  of  April  22,  1704,  8  Gen.  L.  178. 

Apjioal  from  the  Court  of  Quarter  Sessions,  Clarion  County; 
E.  Heath  Clark,  Judge. 

Rolla  Linn  and  Daniel  Linn  were  indicted  for  unlawful 
assL'in'ily,  and  for  profane  cursing  and  swearing.  From  an 
order  (juashing  the  count  averring  the  latter  offense,  the  coni- 
monwealth  appeals.     Aiflrmed. 

The  indictment  was  as  follows:  "In  the  Court  of  Quarter 
Sessions  of  the  peace  for  the  county  of  Clarion.  Clarion 
county — ss:  The  Grand  Inquest  of  the  Commonwealth  of 
Pennsylvania,  inquiring  in  and  fortiie  county  of  Clarion,  upon 
their  respective  oaths  and  alfirmations,  do  present  that  Rolla 
Linn,  late  of  said  county,  yeoman,  Daniel  Linn,  late  of  said 
county,  yeoman,  with  divers  evil-disposed  persons,  to  the  num- 
ber of  three  ami  more,  to  the  jurors  al'oresaitl  as  yet  un- 
known, on  the  first  day  of  October,  A.  D.  1802,  at  the  countv 
aforesaid,  and  within  the  jurisdiction  of  this  court,  did  unlaw- 
fully, riotously,  and  tumultuously  assemble  and  meet  together 
in  the  peace  of  the  said  commonwealth,  and,  being  so  then  and 
there  assembled  and  gathered  together,  did  then  and  there 
make  great  noise,  riot,  tumult,  and  disturbance,  and  then  and 
there  unlawfully,  riotously,  and  tumultuously  remained  and 
continued  together,  making  such  noises,  tumults,  and  disturb- 
ances for  a  space  of  time,  to  wit,  for  one  hour,  to  the  great 
terror  and  disturbance,  not  only  of  the  good  subjects  of  the 
said  commonwealth  there  inhabiting  and  residing,  but  of  all 
the  other  citizens  of  the  said  commonwealth  there  passing  and 
rei)assing  in  and  along  the  public  highways,  contrary  to  the 
form  of  the  act  of  assembly  in  such  cases  made  and  provided, 
and  against  the  peace  and  dignity  of  the  Commonwealth  of 
Pennsylvania.  The  Grand  Inquest  aforesaid,  upon  their  oath 
aforesaid,  do  further  present  that  Rolla  Linn,  late  of  said 


^^^^^^^b' 

•1 

1 

Hi:i 

f 


414 


AMEUICAN  CRIMINAL  REPORTS. 


!^K 


It' : 
T 


■;  1 1 . 


county,  yooman,  Daniel  Linn,  late  of  said  county,  yooman,  on 
the  (lay  anil  year  aforementionotl,  and  on  divers  otlioi'  days, 
as  well  before  as  afterwards,  at  the  county  aforesaid,  anil 
within  the  jurisdiction  of  tliis  court,  did  greatly  disturb  ami 
break  the  ])eace  by  tumultuous  and  offcr.ii,?  carriage,  and  by 
threatening,  quarreling,  and  challenging,  and  b}'  lying  in  wait 
for  one  Harry  Mong,  and  by  threatening  to  kill  the  said  Harry 
Mong,  to  the  great  disquiet,  terror,  and  alarm  of  the  said  Harry 
Mong  and  other  good  citizens  of  this  commonwenltli,  and 
other  wrongs  then  and  there  did,  to  the  evil  example,  and  con- 
trary to  the  form  of  tlie  act  of  assembly  in  such  cases  made 
and  providotl,  and  against  the  peace  and  dignity  of  tlio  Com- 
monwealth of  Pennsylvania.  The  Grand  Inquest  of  the  Com- 
monwealth of  Pennsylvania  aforesaid,  upon  their  oath  afore- 
said, do  further  present  that  Rolla  Linn,  late  of  said  county, 
yeoman,  Daniel  Linn,  late  of  said  county,  yeoman,  i)i'in<,' 
evil-disposed  persons,  on  the  day  and  year  aforesaid,  and 
divers  other  times,  as  well  before  as  since,  at  the  county  afore- 
said, and  within  the  jurisdiction  of  this  court,  did,  on  the  pub- 
lic streets  and  highways,  profanely  curse  and  swear,  and  take 
the  name  of  God  in  vain,  to  the  evil  example  and  to  the  com- 
mon nuisance  of  the  good  citizens  of  the  State  of  Pennsylvania, 
and  contrary  to  the  form  of  the  act  of  assembly  in  sucli  case 
made  and  provided,  and  against  the  peace  and  dignit}'  of  the 
Commonwealth  of  Pennsylvania.  G.  G.  Sloan,  district  attor- 
ney," 

G.  G.  Sloan,  District  Attorney,  W.  L.  Corhett,  and  Weid 
tfc  Geary,  for  the  Commonwealth. 
John  W.  lieed  and  Harry  R.  Wiho7t,  for  appellees. 

Green,  J.  With  an  earnest  desire  to  sustain  this  indict- 
ment, if  possible,  we  find  ourselves  unable  to  do  so.  It  can  not 
be  sustained  under  the  Crimes  Act  of  1860,  §  30,  prohibiting 
blasphemy,  because  it  does  not  charge  that  offense,  nor  under 
the  Act  of  1794,  because  it  is  not  framed  upon  that  Act,  nor  is 
any  attempt  made  to  bring  it  within  the  sj^ecial  proceedings 
under  which  the  act  is  executed. 

It  only  remains  to  be  considered  whether  it  can  be  sustained 
as  charging  a  common-law  offense.  It  can  not  be  doubted  tliat 
profane  swearing  and  cursing,  in  a  loud  and  boisterous  tone  of 


T 


COMMONWEALTH  v.  UNN  ET  AL. 


41ft 


man.  on 
'*'»•  (lays, 
iiitl,  ami 


Dei  111' 


voice,  and  in  the  presence  and  liearing  of  citizens  of  the  com- 
raonwealtli  ))assing  and  repassing  on  the  public  streets  and 
highways  of  the  commonwealth,  to  such  an  extent  as  to  be  a 
common  nuisance  to  all  citizens  being  present,  and  hearing  the 
same,  is  an  indictable  offense  at  common  law.  J5ut  tiiis  indict- 
ment omits  to  charge  all  or  any  of  these  facts  and  circum- 
stances, which  are  essential  to  constitute  the  otfonse  as  a  com- 
mon nuisance. 

It  is  true  the  indictment  charges  that  the  profane  swear- 
ing and  cursing,  and  taking  the  name  of  God  in  vain,  alleged 
against  the  defendants,  was  '*  to  the  evil  example  and  to  the 
common  nuisance  of  the  good  citizens  of  the  State  of  Pennsyl- 
vania," but  it  does  not  aver  tlie  facts  and  circumstances  wliich 
are  necessary  to  make  it  a  common  nuisance.     Profane  swear- 
ing on  the  streets,  not  heard  by  anybody,  of  course,  could  not 
be  a  common  nuisance;  and,  in  fact,  it  should  not   only  be 
heard  by  citizens,  but  the  manner  and  occasion  of  the  utterance 
should  1)0  of  the  offensive  and  annoying  character  which  is 
necessaiy  to  make  it  a  public  and  common  nuisance,  as  dis- 
tinguisliod  from  a  mere  private  nuisance.     The  indictment, 
therefore,  must  contain  an  averment  of  facts  sufficient,  on  its 
face,  to  make  out  the  offense  charged,  Avithin  the  legal  mean- 
ing of  the  offense.    In  Wharton's  American  Criminal  Law, 
(•tth  Ed.,  §  23G2),  it  is  said :     "  But  an  allegation  in  an  indict- 
ment that  certain  facts  charged  were '  to  the  common  nuisance 
''   11  tlie  good  citizens  of  the  state,'  will  not  make  it  a  good 
indu  tnicnt  for  a  common  nuisance,  unless  these  facts  be  of  such 
a  r  *  lire  as  may  justify  that  conclusion  as  one  of  law  as  well 
as    I  fact."    In  Barker  v.  Com.,  19  Pa.  St.  412,  Lewis,  J.,  said  : 
"If  the  language  be  addressed  to  the  public,  in  a  public;  place, 
and  the  intent  and  manifest  tendency  of  it  be  to  debauch  and 
corru])t  the  pnlilic  morals,  the  offense  is  complete."     In  Com. 
V.  Mohn,  52  \\i.  St.  243,  we  sustained  an  indictment  charging 
that  the  defendant,  "  intending  the  morals    *    *    *     of  citi- 
zens of  this  commonwealth  to  debauch  and  corrupt,  openly  and 
publicly    *    *    *    in  the  public  highways,  wicked,  scandalous 
and  infamou;  words  did  utter  in  the  hearing  of  the  citizens  of 
thiscommonwealth,  and  to  their  manifest  corruption  and  sub- 
version and  to  the  common  nuisance,"  etc. 

In  2  Amer.  &  Eng.  Enc.  Law,  p.  424,  note  2,  it  is  said : 
"  Public  swearing  is  a  nuisance  at  common  law,  but,  to  be  in- 


5||ff 


410 


AMERICAN  CRIMINAL  REPORTS. 


dictable,  it  must  bo  in  a  public  place,  and  an  annoyance  to  the 
public; ''  citing  many  cases. 

It  is  the  publicity  of  the  offense,  and  the  place  in  which  it  is 
committed,  that  make  it  punishable  as  a  common  nuisance.  Of 
course,  there  can  be  no  publicity  unless  the  profane  language 
is  uttered  in  the  ])resence  and  within  the  hearing  of  the  citi- 
zens present,  and  this  is  an  essential  and  an  indispensable  fact, 
which  must  necessarily  be  charged  in  the  indictment  in  order 
to  make  out  a  successful  allegation  of  any  offense.  There  is 
no  such  hinguage  in  the  third  count  of  this  indictment,  and  we 
must  therefore  pronounce  it  insufficient  as  a  pleading.  Judi'- 
ment  affirmed. 

Note.— Tr/(a<  constitutes.— To  become  a  public  nuisance,  theoonduot  of  a 
party  must  pass  btyond  the  point  of  being  injurious  to  individuals  and  be 
hurtful  and  offensive  to  the  community.  Wlien  the  use  of  profane  oaths  is 
so  public  and  repeated  as  to  become  an  annoy.ance  and  inconvenionco  to  the 
citizens  at  large,  there  can  be  no  reason  advanced  why  they  should  not  le 
indictable  as  a  common  nuisance.  State  v.  Chriyp,  85  N.  C.  528.  The  loud 
and  boistcn'ous  singing  of  an  obscene  song  on  a  public  street,  in  the  licurina; 
of  divei-s  i)ei'8ons,  even  though  done  only  on  a  single  occasion,  may  be  a  nui- 
sance.    Stutc  V.  Toole,  106  N.  C.  736;  8  Am.  Cr.  Rep.  608, 

The  question  of  what  constitutes  a  public  nuisance  is  one  of  law  for  the 
court.  Wood,  Nuisances  (3d  Ed.),  §  32;  Taylor  v.  Ctmberland,  (HUil.58. 
Bringing  riotous  and  disorderly  persons  together  is  a  public  nuisance.  Inch- 
Ixtldv.  Hohinson,  L.R.,  4  Ch.  388;  Walker  v.  Brewster,  T  .  R.,  5  Eq.  2").  And 
even  if  the  business  of  tlie  person  who  brings  a  riotous  tlirong  together,  is  a 
lawful  one,  a  nuisance  is  created.  Rca;  v.  Moore,  3  Barn.  &  Ad.  1S4, 
Blackstone  defines  a  common  nuisance  as  "anything  that  worketli  hurt, 
inconvenience,  or  damage"  to  the  public.  8 Com,  215,  Any  conduct  or 
business,  the  tendency  of  which  is  to  encourage  idleness,  to  corru])t  tlio  pub- 
lic morals  or  to  draw  together  numbers  of  disorderly  persons,  is  a  uuibouce. 
5  Bac.  Abr,  147. 


(Crown  Case  Reserved.) 

The  Qlekn  v.  Instan. 

(1  L,  R.  (1893),  Q.  B.  450.) 

Orr^Ni  i .  AOAtNST  THE  PERSON:   Manslaughter— Neglect  to  provide  food 
or  medical  attendance  for  person  of  full  age. 

The  prisoner,  a  woman  of  full  age  ani  without  any  means  of  her  own 
lived  with,  and  was  maintained  by  the  deceased,  her  aujit,  a  woman  of 
Beventy -three.    No  one  lived  with  them.    For  the  last  ten  days  of  her 


THE  QUEEN  v.  INSTAN. 


417 


life  tlio  deceased  suffered  from  a  disease  which  prevented  lier  from  mov- 
ing or  doing  anything  to  procure  assistance;  during  this  time  the  pris- 
oner lived  in  tlie  liouse,  and  took  in  tlie  food  suppUed  by  the  tradesmen, 
but  apparently  gave  none  of  it  to  the  deceased,  nor  did  she  procure  for 
her  any  medical  or  nursing  attendance,  or  inform  any  one  of  the  condi- 
tion of  the  deceased,  although  she  had  abundant  opportunity  to  do  so. 
No  one  but  the  prisoner  had  any  knowledge  of  the  condition  of  the  de- 
ceased prior  to  her  death,  which  was  substantially  accelerated  by  want 
of  food,  nursing,  and  medical  attendance.  Held,  that  a  duty  w^as  im- 
posed uiion  the  prisoner  under  the  circumstances  to  supply  the  deceased 
with  sufKcient  food  to  maintain  life,  and  that,  the  death  of  the  deceased 
having  been  accelerated  by  the  neglect  of  such  duty,  the  prisoner  was 
properly  convicted  of  manslaughter. 

Case  stated  by  Day,  J. 

Kate  Instan  was  tried  before  me  at  the  last  assizes  for  the 
county  of  Worcester  upon  a  charge  of  feloniously  killing  one 
Ann  Hunt.  The  prisoner,  who  is  between  thirty  and  forty 
years  of  age,  and  unmarrieil,  had  no  occupation,  and  no  means 
of  her  own  living.     She  was  a  niece  of  the  deceascl. 

At  the  time  of  the  committal  of  the  alleged  offense ,  and 
for  some  time  previous  thereto,  she  had  been  living  with,  and 
had  been  maintained  by  the  deceased.  Deceased  was  a 
woman  of  some  seventy-three  years  of  age,  and  until  a  few 
weeks  before  her  death  was  healthy  and  able  to  take  care  of 
herself.  Slie  was  possessed  of  a  small  life  income,  and  had  in 
the  house  in  which  she  lived,  some  little  furniture,  and  a  few 
other  articles  of  trifling  value.  The  two  women  lived  to- 
gether in  a  house  taken  by  the  deceased;  no  one  lived  with 
them  or  in  any  way  attended  to  them. 

The  deceased,  shortly  before  her  death,  suffered  from  gan- 
grene in  the  leg,  which  rendered  her,  during  the  last  ten  days 
of  her  life,  quite  unable  to  attend  to  herself  or  to  move  about  or 
IkIo  anything  to  procure  assistance.  No  one  but  the  prisoner 
had,  pervious  to  the  death,  any  knowledge  of  the  condition  in 
which  her  aunt  thus  was.  The  prisoner  continued  to  live  in  the 
house  at  the  cost  of  the  deceased,  and  took  in  the  food  sup- 
plied by  the  tradespeople;  but  does  not  appear  to  have  given  any 
to  the  deceased,  and  she  certainly  did  not  give  or  procure  any 
medical  or  nursing  attendance  to  or  for  her,  or  give  notice  to 
any  neighbor  of  her  condition  or  warts,  although  she  had 
abundant  opportunity  and  occasion  to  do  so. 
The  body  of  the  deceased  was,  on  August  2d,  while  the 
27 


Jlptfr.  Il 


418 


AMERICAN  CRIMINAL  REPORTS. 


WW 


'^v 


prisoner  was  still  living  in  the  house,  found  much  cloconiposed 
partially  dressed  in  her  day  clothes,  and  lying  partly  on  the 
ground  and  pc^rtly  prone  upon  the  bed.  The  death  probablv 
occurred  from  four  to  seven  days  before  August  3d,  th;3  date  of 
the  post-mortem  examination  of  the  body.  The  cause  of  death 
was  exhaustion  caused  by  the  gangrene,  but  substantially  ac- 
celerated by  neglect,  want  of  footl,  of  nursing  and  of  mmlica! 
attendance  during  several  days  previous  to  the  death.  All 
these  wants  could  and  would  have  been  supplied  if  any  notice 
of  the  condition  of  the  deceased  had  been  given  by  the  prisoner 
to  any  of  the  neighbors,  of  whom  there  were  several  living  in 
adjoining  houses,  or  to  the  relations  of  the  deceased,  who  lived 
within  a  few  miles.  It  was  proved  that  tho  prisoner,  'vhile 
the  deceased  must  have  been  just  about  dying,  had  ctyuversa- 
tions  with  neighbors  about  the  deceased,  but  did  not  avail 
herself  of  the  opportunities  thus  afforded  of  disclosing  the  con- 
dition in  which  she  then  was. 

At  the  close  of  the  case  it  was  objected  on  behalf  of  the 
prisoner,  that  there  was  no  evidence  of  any  legal  duty  such  as 
would  bind  the  prisoner  to  give  or  to  procure  any  fooJ,  or 
nursing,  or  attendance  to  or  for  the  deceased,  or  to  give  any 
notice  to  any  one  that  such  was  required.  I  thought  it  better 
not  to  stop  the  case,  but  to  leave  it  to  the  jury  to  say  whether, 
having  regard  to  the  circumstances  under  which  the  prisoner 
lived  with  the  deceased,  and  continued  to  occupy  the  house, 
and  to  take  the  food  provided  at  the  expense  of  the  deceased, 
while  the  deceased  was,  as  she  knew,  unable  to  comniunicate 
with  any  other  person,  and  thus  to  procure  necessaries  for 
herself,  the  prisoner  did  or  did  not  impliedly  undertake  with 
the  deceased  either  to  wait  upon  and  attend  to  her  hersolf,  or  to 
communicate  to  persons  outside  the  house  the  knowledge  of 
her  helpless  condition;  and  I  told  them  that  if  they  came  to 
the  conclusion  that  she  did  so  undertake,  and  that  the  death 
of  the  deceased  was  substantially  accelerated  by  her  failure  to 
carry  out  such  undertaking,  they  might  find  the  prisoner  guilty 
of  manslaughter,  but  that  otherwise  they  should  acquit  her. 
The  jury  found  the  prisoner  guilty. 

If  the  facts  above  stated  do  not  afford  evidence  of  the  existence 
of  any  such  un^'ertaking  or  duty,  then  the  conviction  is  to  be 
quashed;  if  otherwise,  it  is  to  stand. 


Vachell,  for  the  prisoner.    There  was  no  legal  duty  imposed 


i-    !l.rV!W 


THE  QUEEN  v.  INSTAN. 


410 


upon  the  prisoner  to  provide  food  or  attendance  for  the  de- 
ceased during  the  last  ten  da\'s  of  her  life;  there  was  certainly 
no  such  duty  before  that  time,  for  the  deceased  was  the  head 
of  the  household  and  able  to  help  herself.  Such  a  duty  as  is 
here  sought  to  be  enforced  can  only  arise  by  virtue  of  a  statute 
or  a  contract,  or  at  common  law.  It  must  be  conceded  that 
there  was  no  statutory  duty,  neither  was  there  any  duty  at 
common  law;  there  is  no  authority  for  the  existence  of  any 
such  common  law  duty  in  the  person  of  full  age;  in  such  a  case 
the  duty  can  only  arise  in  respect  of  an  undertaking,  expressed 
or  implied.  In  Hex  v.  Frifnd,  R.  &  R.  20,  it  was  held  to  be 
an  indictable  offense  to  refuse  or  neglect  to  provide  sufficient 
food,  bedding,  etc.,  to  ati  infant  of  tender  years,  unable  to  pro- 
vide for  and  take  care  of  itself,  whom  a  man  was  obliged  by 
duty  or  contract  to  provide  for;  but  the  decision  was  in  terms 
confined  to  such  cases,  and  the  indictment  was  held  to  be  de- 
fective in  not  stating  the  child  to  be  of  tender  years  and  una- 
ble to  provide  for  itself.  In  Reg.  v.  Slie])hei'(l,  L.  &  C.  147,  it 
was  held  that  there  was  no  duty  upon  a  woman  to  procure  a 
midwife  for  her  daughter,  a  girl  of  eighteen,  and  that  she  could 
not  be  convicted  of  manslaughter  for  omitting  to  do  so.  In 
his  judgment,  Erie,  C.  J.,  says:  "Here  the  girl  was  beyond 
the  age  of  childhood,  and  was  entirely  emancipated."  In  the 
case  of  a  person  of  full  age  such  a  duty  may  indeed  arise  out 
of  an  expressed  or  implied  undertaking;  Reg.  v.  Marriott,  8 
C.  &  P.  425,  where  a  man  was  convicted  of  the  manslaughter 
of  an  elderly  and  infirm  woman,  whom  he  had  taken  homo  to 
live  in  his  house,  ])romising  to  make  her  happy  and  comforta- 
ble. In  summing  up  in  that  case,  Patteson,  J.,  said  •  "  The 
cases  which  have  happened  of  this  descri])tion,  have  been  (gen- 
erally) cases  of  children  and  servants,  where  the  duty  was  ap- 
parent. This  is  not  such  a  case;  but  it  will  be  for  you  to  say 
whetlier,  from  the  way  in  which  the  prisoner  treated  her,  he 
had  not  by  way  of  contract,  in  some  way  or  other,  taken  upon 
him  the  performance  of  that  duty  which  she,  from  age  and 
infirniity,  was  incapable  of  doing."  In  the  present  case  there 
was  no  evidence  of  any  contract  or  undertaking  by  the  prisoner 
to  take  care  of  her  aunt,  though  no  doubt  she  was  under  a 
moral  obligation  to  do  so. 

(Hawkins,  J.    Why  should  not  a  contract  be  implied  from 
such  circumstances  as  those  in  this  case  ?    Suppose  two  people 


'.'fc  ;/:!'' '•■!   , 

-If:     . 


420 


AMERICAN  CRIMINAL  REPORTS. 


agreed  to  live  together  for  their  mutual  benefit,  would  not  the 
mere  fact  of  their  living  together  be  evidence  from  which  an 
undertaking  might  be  implied  ?) 

(Cave,  J.  When  the  prisoner  took  in  food  paid  for  with  the 
deceased's  money,  she  had  no  right  to  apply  it  all  for  her  own 
use.     Did  she  not  then  undertake  a  duty  toward  the  dncoased  ?) 

!Not  by  way  of  contract  so  as  to  raise  a  legal  duty;  it  was 
nothing  more  than  a  duty  of  imperfect  obligation. 

Lord  Coleridge,  C.  J.  We  are  all  of  opinion  that  tliis  con- 
viction must  be  affirmed.  It  would  not  be  correct  to  say  that 
every  moral  obligation  involves  a  legal  duty;  but  every  legal 
duty  is  founded  on  a  moral  obligation.  A  legal  common  law 
duty  is  nothing  else  than  the  enforcing  by  law  of  that  which 
is  a  moral  obligation  without  legal  enforcement.  There  can 
be  no  question  in  this  case  that  it  was  the  clear  duty  of  the 
prisoner  to  impart  to  the  deceased  so  much  as  was  necessary 
to  sustain  life  of  the  food  which  she  from  time  to  time  took  in, 
and  which  was  paid  for  by  the  deceased's  own  money  for  the 
purpose  of  the  maintenance  of  herself  and  the  prisoner;  it  was 
only  through  the  instrumentality  of  the  prisoner  that  the  de- 
ceased could  get  the  food.  There  was,  therefore,  a  common  law 
duty  imposed  upon  the  prisoner  which  she  did  notdiscliarge. 

Nor  can  there  be  any  question  that  the  failure  of  the  prisoner 
to  discharge  her  legal  duty  at  least  accelerated  the  death  of 
the  deceased,  if  it  did  not  actually  cause  it.  There  is  no  case 
directly  in  point;  but  it  would  be  a  slur  upon  and  a  discredit 
to  the  administration  of  justice  in  this  country  if  there  were 
any  doubt  as  to  the  legal  princijile,  or  as  to  the  present  case 
being  within  it.  The  prisoner  was  under  a  moral  obligation  to 
the  deceased,  from  which  arose  a  legal  duty  toward  her;  that 
legal  duty  the  prisoner  has  wilfully  and  deliberately  left  un- 
performed, with  the  consequence  that  there  has  been  an  accel- 
eration of  the  death  of  the  deceased,  owing  to  the  non-])erform- 
ance  of  that  legal  duty.  It  is  unnecessary  to  say  more  than  that 
upon  the  evidence  this  conviction  was  most  properly  arrived  at. 

Hawkins,  Cave,  Day  and  Collins,  JJ.,  concurred. 
Conviction  affirmed. 


Solicitors  for  the  prisoner,  Ivens  tfc  Morton,  Kidderminster. 


ir-^"!'^fWBHm 


T^r^.-r 


j    Mi  I      '  f 


THE  QUEEN  v.  BAKER.  421 

(Crown  Case  Reserved.) 

The  Queen  v.  Baker. 

(1  L.  R.  (1895),  Q.  B.  797.) 

Perjury:    Materiality. 

1,  All  false  statements  wilfully  and  corruptly  made  by  a  witness,  as  to  mat- 

ters which  affect  his  credit,  are  material,  and  he  is  liable  to  be  convicted 
of  perjury  in  respect  of  such  statements. 

2,  The  defendant  had  been  charged  with  selling  beer  without  a  license,  and 

had  falsely  sworn  that,  when  previously  charged  with  a  similar  offense 
he  had  not  authorized  a  plea  of  guilty  to  be  put  in,  and  that  such 
plea  had  been  put  in  without  his  knowledge  and  against  his  will. 
Held,  that,  as  such  statements  affected  the  defendant's  credit  as  a  wit- 
ness, they  were  material,  and  he  was  rightly  convicted  of  perjury. 

Case  stated  by  His  Honor,  Judge  Chalmers,  sitting  as  Com- 
missioner of  Assize. 

The  defendant.  Baker,  was  tried  on  February  9,  1895,  at  the 
Glamorganshire  Assizes,  on  a  charge  of  wilful  and  corrupt  per- 
jury. 

The  substance  of  the  indictment  was,  that  on  December  18, 
1S94.  at  the  petty  sessions  held  at  Cardiff,  before  the  stipend- 
iary magistrate,  he.  Baker,  was  charged  with  the  offense  of 
selling  beer  without  a  license,  and,  having  been  duly  sworn, 
deposed  that  he  had  never  authorized  the  plea  of  guilty  to  be 
put  in  to  a  previous  charge  of  selling  beer  without  a  license  con- 
trary to  Sec.  3  of  the  Licensing  Act,  1878  (35  and  36  Vict.  C. 
04),  on  November  f),  1894,  and  that  he  had  not  authc"'  ;ed  his 
solicitor  to  put  in  the  plea  of  guilty  to  the  charge,  even  by  an 
indirect  authority,  and  that  he  had  no  knowledge  that  his  so- 
licitor was  going  to  plead  guilty  on  his  behalf,  and  that  it 
was  against  his  wish  and  will  that  the  plea  of  guilty  was 
put  in. 

It  was  proved  before  the  commissioner  that,  at  the  hearing 
before  the  stipendiary  magistrate,  the  defendant  swore  as  fol- 
lows, namely :  that  he  had  been  previously  convicted  of  selling 
beer  without  a  license  on  November  6,  1894,  and  that  the  con- 
viction was  in  respect  of  the  same  premises,  and  that  he  had 
never  authorized  the  plea  of  guilty  to  be  put  in  on  November  0. 

lie  then  proceeded  to  swear  as  follows  : 

"  I  was  at  the  police  court  at  11  a.  m.,  on  November  6;  I  met 


:         ji    ' 

^'^' 

1 

1 

5  ,     ':,:.'■ 

■'11 

, « 

; 

1 

i !  i 


422 


AMERICAN  CRIMINAL  REPORTS. 


my  solicitor,  Mr.  Belclior,  outside.  He  said,  '  Your  case  won't 
come  on  for  an  hour.'  I  said,  '  Will  you  send  for  mo  when 
wanted  ? '  I  then  took  the  witnesses  to  the  Bl.ack  Li(jn  Ilotel, 
and  had  not  been  there  ten  minutes  when  Jacobs  came  in  and 
said  the  case  was  over,  and  that  Belcher  had  pleaded  guilty.  I 
was  very  much  annoyed,  as  I  had  given  no  authority  to  plead 
guilty,  not  even  indirect  autliority.  I  was  surprised  at  tlie  in- 
formation I  received.  I  went  with  Belcher  to  the  oilice  and 
remonstrated  with  him,  as  it  was  against  my  wish  the  plea  of 
guilty  was  put  in.  Belcher  did  not  tell  me  that  he  would  not 
go  into  court  unless  a  plea  of  guilty  was  put  in." 

Evidence  was  called  on  behalf  of  the  Crown  to  sliow  that  the 
defendant,  after  full  cxplanation'of  the  matter,  had  authorized 
his  solicitor.  Belcher,  to  plead  guilty  on  his  behalf,  and  that 
when  he  was  informed  of  what  had  been  done,  ho  expressed 
himself  as  perfectly  satisfied  with  the  result. 

At  the  conclusion  of  the  case  for  the  Crown,  counsel  for  the 
defendant  took  the  objection  that,  even  if  the  statements  made 
by  Baker  were  knowingly  false,  the}'  could  not  amount  to  per- 
jury, because  they  were  not  material  to  the  issues  then  pend- 
ing before  the  stipendiary  nifigistrate. 

(The  three  grounds  relied  on  by  counsel  for  the  defendant, 
which  were  set  out  in  the  case,  are  stated  and  dealt  with  in 
the  judgment  of  tho  Lord  Chief  Justice,  post,  at  p.  709.) 

The  commissioner  held  that  Baker,  having  tendered  himself 
as  a  witness  under  35  and  3G  Vict.  c.  94,  c.  51,  subs.  4,  Avas 
properly  examined  at  that  stage  of  the  proceedings  concerning 
the  circumstances  of  his  previous  conviction,  and  that  his 
answers  were  material,  inasmuch  as,  in  the  event  of  a  convic- 
tion, the  facts  deposed  to  would  be  taken  into  consideration  by 
the  magistrate  in  the  ultimate  determination  of  the  case;  but 
he  said  he  would  state  a  case  on  the  objections  raised. 

The  jury  found  the  defendant  guilty. 

The  question  for  the  opinion  of  the  court  Avas  whether  the 
above  statements  of  the  defendant  were  material  to  the  issues 
then  depending  before  the  stipendiary  magistrate. 

No  counsel  appeared  for  the  defendant,  nor  did  he  appear 
in  person. 

C.  J.  Jackson,  for  the  prosecution,  was  not  called  upon. 


rrwm 


THE  QUEEN  v.  BAKER. 


423 


Loun  Rlssell,  of  Killowen,  0.  J.    The  sole  point  for  our 
consiilenition  in  this  case  is  whether  the  statements  made  by 
the  dclciulant,  which  the  jury  have  found  to  have  been  made 
falsely  and  wilfully,  were  material  to  the  case  which  was  before 
the  stipondiary  magistrate  when  the  defendant  was  charged 
for  the  second  time  with  the  otfense  of  selling  beer  without  a 
license,    I  will  take  the  grounds  relied  on  for  the  defendant  in 
the  ordoi'  in  which  they  are  stated  in  the  case.    The  first 
ground  taken  is  that,  as  the  defendant  had  admitted  his  pre- 
vious conviction,  and  had  not  appealed  therefrom,  it  was  im- 
material to  the  then  pending  inquiry  whether  the  previous 
plea  of  guilty  had  been  put  in  by  the  defendant's  consent  or 
not.    The  answer  to  that  contention  is  that  the  defendant's 
answers  would  atfect  his  credit  as  a  witness,  and  all  false  state- 
ments, wilfully  and  corruptly  made,  as  to  matters  which  affect 
ids  credit,  are  material.     The  magistrate  may  be  influenced, 
in  arriving  at  his  decision,  by  the  circumstances  of  the  previous 
conviction,  and,  if  the  defendant's  solicitor  had  pleaded  guilty 
on  his  behalf,  without  his  knowledge  or  consent,  that  circum- 
stance might  have  been  taken  into  consideration  as  affecting 
the  amount  of  punishment.     The  second  ground  taken  is  that 
the  pre^'ious  conviction  could  only  become  material  when  the 
magistrate  decided  to  convict  in  the  then  pending  proceeding, 
and  that,  as  a  fact,  the  proceedings  had  been  adjourned  to 
await  the  result  of  the  prosecution  for  perjury.    I  do  not  see 
the  relevance  of  that  argument.     The  magistrate  must  con- 
sider the  case  on  the  evidence  given  before  him,  and  the  cir- 
cumstances may  have  an  influence  on  the  punishment.    If  on 
the  previou:3  occasion  the  defendant  had,  .as  he  alleged,  been 
convicted  jter  incuriam,  the  magistrate  might  have  given  him 
the  benefit  of  that  fact,  and  might  have  treated  the  subsequent 
charge  as  if  it  had  been  a  charge  of  a  first  offense.     The  third 
ground  taken  is  that  a  previous  conviction  only  affected  the 
amount  of  punishment  to  be  awarded  by  a  magistrate,  and  not 
any  issue  to  be  determined  by  him,  and  further  that  the  mag- 
istrate could  only  take  cognizance  of  the  fact  of  the  previous 
conviction,  and  not  of  the  circumstances  under  which  it  took 
place.    But,  as  I  have  already  pointed  out  in  dealing  with  the 
previous  objections,  it  is  wrong  to  suggest  that  the  magistrate 
could  only  take  cognizance  of  the  fact  of  the  previous  convic- 
tion.   For  these  reasons  I  am  of  opinion  that  the  words 


'='11 


1 

"'Iff 

■  ■■  ■  f : 

■■'  i 

T      . 

^  4i 

4:U 


AMERICAN  CRIMINAL  REPORTS. 


Stated  in  the  case  were  material.  I  will  deal  shortly  with  the 
authorities.  In  Reg.  v.  Overton  (Car.  &  Marsh,  Orjo),  the  date 
of  a  receipt  which  had  been  given  for  the  price  of  a  gi eyliouml 
was  held  to  be  material.  Patteson,  J.,  so  held,  after  consult- 
ing Parke,  B.,  on  the  ground  that  every  question  on  cross- 
examination  of  a  witness  which  goes  to  his  creilit  is  material. 
The  case  afterward  came  before  a  court  consisting  of  eleven 
judges,  who  supported  the  view  adoi)ted  by  Parke,  i>.,  and  Pat- 
teson, J.  In  Reg.  v.  Zaveg,  3  C.  &  K.,  26  (see  21  L.  J.  (M. 
C)  10,)  whore  a  plaintiff  in  a  county  court  had  falsely  swoin 
that  she  had  never  been  tried  at  tlie  Old  IJailey,  and  bad 
never  been  in  custody  at  the  Thames  police  station,  the 
evidence  Avas  held  to  be  material.  This,  again,  was  on  the 
ground  that  it  affected  her  credit.  In  Reg.  v.  Gihhon,  L. 
»fe  C.  109,  it  was  held  by  eleven  judges,  Martin,  !>.,  and 
Crompton,  J.,  doubting,  that  perjury  might  be  assigned  on  evi- 
dence going  to  the  credit  of  a  material  witness  in  a  cause,  al- 
though such  evidence,  being  legally  inadmissible,  ought  nut  to 
have  been  received.  That  is  a  very  strong  authority —nnich 
stronger  than  is  needed  to  support  the  conviction  in  the  i)res- 
ent  case.  I  am  of 'opinion  that  the  evidence  was  material,  and 
the  conviction  was  right,  and  ought  to  be  affirmed. 

Hawkins,  J.     I  entirely  agree  for  the  reasons  given  l»y  the 
Lord  Chief  Justice, 

Cave,  Grantham,  and  Lawkence,  JJ.,  concurred. 
Conviction  affirmed. 


\.  r 


Solicitors  for  prosecution:  Rlddell,  Vaizcy  c5  Smith,  for 
J.  L.  Wheatley,  Town  Clerk  of  Cardiff. 

Note. — What  constitutes. — An  oath  taken  before  a  de  facto  dppiity  clerk 
may  be  the  foundation  of  a  charge  of  perjury,  although  the  apjioiiitinent 
of  auch  clerk  is  invalid.  Izer  v.  State,  77  Md.  110.  A  person  wlio  lias  wil- 
fully and  knowingly  sworn  falsely  in  giving  testimony  before  a  grand  jury 
may  be  indicted  and  tried  for  perjury,  as  the  grand  jurors  before  whom  he 
has  testified  are  competent  witnesses  against  him;  their  oath  of  secrecy 
can  pot  be  interposed  to  obstruct  tlie  administration  of  justice.  It  can  not 
be  made  the  means  to  defeat  the  punishment  of  crime. 

"There  ia  no  doubt  the  witnesses  before  the  grand  jury  should  be  Rwom 
in  such  a  manner  that  if  their  testimony  was  false  they  might  be  indicted 
for  perjury."    State  V,  Fassett,  16  Conn.  475;  State  v.  Broughten,!  Ired. 


m 


THE  QUEEN  v.  BAKER. 


425 


96;  People  v.  Young,  81  Cal.  563.  It  is  perjury  to  make  a  false  affidavit  be- 
fore an  I'U'ction  board  that  a  certain  person  ia  a  resident  and  qualified 
voter  in  a  certain  election  precinct,  whether  the  affidavit  accomplishes 
the  purpiisfs  for  which  it  was  intended  or  not.  State  v.  Hopper,  133  Ind. 
460.  One  wlio  falsely  swears  that  the  woman  is  of  marriageable  age, 
for  the  purpose  of  securing  a  license,  is  not  guilty  of  perjury  if  he  believed 
at  the  time  that  she  was  of  that  age.  Aguierre  v.  State,  31  Tex.  Cr.  Rep.  519. 
Appreliension  of  future  violence  is  not  such  duress  as  will  excune  perjury. 
A  witness  swearing  to  one  state  of  facts  before  a  coroner's  jury  of  inquest, 
with  ample  protection  guaranteed,  and  on  the  trial  of  the  indictment  states 
her  testimony  so  given  was  false  and  then  testifies  to  another  and  different 
state  of  facts,  which  are  material  to  the  issue,  is  guilty  of  perjury,  altiiough 
claiuiinf;  to  have  given  her  testimony  before  the  coroner's  jury  under  du- 
ress. Fear  is  not  a  legal  excuse  for  perjury  committed  in  a  legal  tribunal. 
Burns  r.  State,  89  Ga.  527. 

False  testimony  is  not  relieved  of  the  taint  of  perjury  by  the  fact  that  the 
jurj-  ^ver('  not  legally  sworn.  Perjury  is  a  false  statement,  either  written 
or  verbal,  deliberately  and  wilfully  made,  relating  to  sometiiing  past  or 
present,  under  the  sanction  of  an  oath,  where  such  oath  is  legally  admin- 
istered inider  circumstances  in  which  an  oath  is  required  by  law,  or  is 
necessary  for  the  prosecution  or  defense  of  any  private  right,  or  for  the  ends 
of  public  justice.  An  oath,  legally  taken  in  any  stage  of  a  judicial  proceed- 
ing, civil  or  criminal,  in  or  out  of  court  or  before  a  grand  jury,  is  included 
in  the  description  of  this  offense.  Now,  it  is  contended  that  until  the 
jury  be  legally  sworn  the  oath  is  not  required  by  law.  and  is  therefore 
not  legally  taken;  in  other  words,  the  objection  is  that  all  of  the  pro- 
ceedint^s  must  be  regular  up  to  the  time  the  oath  is  taken  in  order  for 
the  oath  to  be  legally  taken.  We  can  not  agree  to  such  a  projinsition.  The 
effect  would  be  fatal  to  a  great  many  prosecutions  for  perjury  if  tlie  i)roposi- 
tion  wiis  extended  to  its  legitimate  consecjuencea.  The  correct  rule  seems 
to  be  that,  if  the  court  has  jurisdiction  of  the  subject-matter  of  the  suit, 
and  the  oath  is  required  by  law,  irrt'gularities  in  the  proceedings  will  not 
prevent  perjury.  In  State  v.  Hall,  7  Blackf.  25,  a  trial  was  had  before  a 
court  and  jury  of  six  men.  Hall  testified  in  the  case,  and  his  evidence  was 
assigned  as  perjury.  It  was  urged  there  was  no  perjury,  because  the  case 
was  tried  before  a  jury  of  six  men,  and  that  a  trial  by  a  jury  of  six  men  in 
Buch  a  case  was  wholly  unauthorizoi'i  by  law,  and  that  the  proceedings 
were  therefore  illegal  and  void.  To  this  the  supreme  court  reply:  '"  Where 
the  false  swearing  was  in  the  course  of  a  judicial  proceeding,  we  do  not 
think  it  essent  ial  to  the  commission  of  the  offense  of  perjury  that  all  the 
proceedings  on  the  trial  should  be  strictly  regular.  It  is  essential,  however, 
tiiat  the  court  have  jurisdiction  of  the  subject-matter,  and  power  to  ad- 
minister an  oath  to  the  witness."    Smith  v.  State,  31  Tex.  Crim.  Rep.  315. 

Where  a  witness  testifies  on  a  trial  for  seduction  that  he  knew  complain- 
ant's reputation  for  virtue  and  chastity  to  be  bad,  and  that  he  had  inter- 
course with  her  before  the  alleged  seduction,  such  evidence  is  material  to 
the  issue  on  trial,  and,  if  false,  he  was  guilty  of  perjury.  State  v.  Blize, 
111  Mo.  464. 


Hi 


420 


AMERICAN  CRIMINAL   REPORTS. 


't 


'I'i.  V 


•f. 


State  v.  Hunt. 

(137  Ind.   537.) 

Perjury  :  Evidence— Inatrudiona. 

1.  In  a  prosecution  for  having  committed  perjury  in  an  action  nRninst  a 

railroad  company  for  personal  injuries,  by  falsely  swearing  that  lie  was 
the  first  to  reacli  the  injured  boy  after  he  fell  from  the  car,  ovidoncc 
that  defendant  testified  that  two  others  were  the  fii-st  to  reach  liim 
was  properly  excluded. 

2.  In  the  damage  suit,  the  main  issue  was  whether  the  defendant's  brake- 

man  had  driven  the  plaintilt  off  the  train  while  in  motion,  uiul  a  wit- 
ness ti'stilieil  that  he  did.  Held  that,  though  the  witness'  testimony 
that  he  helped  to  carry  the  plaintitT  away  after  lie  fell  was  immaterial 
on  the  issue  of  the  brakeman's  misconduct,  yet,  as  connected  with  the 
truth  of  his  statement  as  to  the  brakeman's  misconduct,  and  as  to 
whether  he  was  present,  and  saw  the  whole  transaction,  such  ovitlence 
might  be  so  material  as  to  constitute  a  basis  for  a  charge  of  perjury, 
since  a  circumstantial  account  of  what  took  place  might  have  led  the 
jury  to  give  more  credence  to  the  testimony  that  he  was  present,  and 
saw  the  alleged  misconduct. 

&  Though  a  witness  in  the  prosecution  for  perjury  testified  as  to  ih'clara- 
tions  made  by  defendant  out  of  court,  that  he  did  not  see  tlie  brake- 
man  knock  the  boy  from  the  train,  evidence  that  defendant  had  made 
declarations  out  of  court  consistent  with  his  alleged  false  testimony  are 
not  competent,  as  one  can  not  give  his  own  declarations  in  evidence, 

4.  Error  assigned  to  the  giving  or  refusal  of  instructions  can  not  be  noticed, 
unless  such  instructions  are  brought  into  the  record  by  bill  of  excep- 
tions. 


Appeal  from  Circuit  Court,  Elkhart  County. 
William  II.  Hunt  was  tried  for  perjury,  and  acquitted,  and 
the  state  appeals.     Appeal  sustained. 

Henry  D.    Wilson,  Hiram  S.  Brigys,  and  A.  G.  Smith,  At- 
torne3'-General,  for  the  State. 
Terrell  it  Ilanan,  for  appellee. 

McCauk,  J.  The  appellee  was  prosecuted  and  acquitted  of 
the  charge  of  perjury  in  the  circuit  court.  The  state  appeals, 
and  assigns  many  rulings  of  the  trial  court  in  the  reception 
and  rejection  of  evidence,  and  in  giving  and  refusing  instruc- 
tions. We  are  met  with  an  objection  from  the  appellee  to  the 
consideration  of  the  errors  assigned — that  the  bill  of  excep- 


STATE  V.  HUNT. 


427 


tions  is  not  in  the  record.  The  trial  ended  on  the  18th  day  of 
OctolxM',  1893,  when  the  verdict  of  not  guilty  was  returned, 
wliereon  judgment  of  acquittal  was  rendered.  Ninety  days' 
time  was  allowed  to  the  state,  in  which  tr»  file  a  bill  of  exce|> 
tions.  The  bill  of  exceptions  was  filed  on  the  7th  day  of  De- 
cember next  following.  It  is  contended  that  the  order  was 
void  because  the  statute  only  permits  the  court  to  allow  sixty 
(lays  iit'ter  the  judgment  is  rendered  in  v.'hich  to  file  abill  of  ex- 
ceptions. That  is  the  provision  of  the  statute.  1  Burns'  Kev.  St. 
1894,  i^  1916  (Rev.  St.,  1881,  §  1847).  But  the  bill  was  tiled  within 
sixty  days  next  after  the  time  the  judgment  was  rendered.  The 
court  was  authorized  to  allow  sixty  days,  and  it  allowed  sixty 
clays  and  jnore;  it  granted  ninety  days.  Now,  does  the  fact  that 
it  allowed  thirty  days  more  than  the  statute  authorized  it  to 
allow,  render  the  whole  allowance  of  time  invalid — the  sixty 
days  it  was  authorized  to  allow,  as  well  as  the  additional  thirty 
days  it  was  not  authorized  to  allow  ?  It  has  been  held  that 
where  the  order  allowing  time  was  for  more  than  sixty  days, 
and  tlie  bill  was  not  filed  until  after  the  expiration  of  the  stat- 
utory limit  of  sixty  days,  such  bill  of  exceptions,  though  filed 
within  the  time  allowed,  is  not  in  the  record.  Mai'shall  v. 
State,  123  Ind.  128;  23  N.  E.  1141;  Bartley  v.  State,  111  Ind. 
358;  12  N.  E.  503.  We  are  of  opinion  that,  to  the  extent  of 
sixty  days  of  the  time  allowed,  the  order  was  valid;  the  order 
as  to  all  the  time  over  that,  was  invalid;  and  as  the  bill  was 
actually  filed  within  the  time  validly  allowed,  it  was  a  sub- 
stantial compliance  with  the  statute,  and  it  thereby  became  a 
part  o?  the  record. 

It  is  contended  by  the  appellee  that  no  valid  judgment  of  ac- 
quittisl  was  rendered,  and  hence  no  appeal  lies,  and  for  that 
reaso  1  we  are  asked  by  the  appellee  to  dismiss  the  appeal.  In 
criminal  cases  the  state  is  authorized  to  appeal  in  tlie  follow- 
ing cases,  and  no  other :  (1)  Upon  a  judgment  for  the  defend- 
ant, quashing  the  indictment;  (2)  upon  an  order  arresting  the 
judgment;  (3)  upon  a  question  reserved  b}'  the  state.  1  Burns' 
Rev.  Stat.  1894,  §  1955  (Rev.  St.  1881,  §  1882).  This  appeal  is 
prosecuted  under  the  third  and  last  specification.  But  there 
must  be  a  judgment  for  the  defendant  in  each  case  before  an 
appeal  will  lie.  The  reason  assigned  why  there  is  supposed  to 
be  no  judgment  for  the  defendant,  is  that  the  transcript  does 
not  disclose  tL^t  the  record  of  the  judgment  set  forth  therein 


W"^^ 


w 


438 


AMERICAN  CRIMINAL  REPORTS. 


!«, 


J1 


jf'.t 


Is 


was  si<;ned  by  tho  special  judge  who  tried  the  cause.  Certified 
transcripts  of  proceedings  of  courts  need  not  show  tliat  such 
proceedings  were  signed,  the  presumption  being  that  they 
were  duly  and  properly  signed  until  the  contrary  is  allirma- 
tively  made  to  appear  in  the  transcript.  Adamn  v.  Lee,  82 
Ind.  587;  Amlenoii  v.  Ackennan,  88  Ind.  4S1;  State  v.  Ilnnna, 
84  Ind.  183.  The  motion  to  dismiss  tho  appeal  is  thorcfore 
overruled. 

It  is  next  objected  that  the  evidence  set  out  in  the  l»ill  of 
exceptions,  embodying  the  original  longhand  manuscript  of  the 
shorthand  report  thereof,  is  not  shown  ever  to  have  botMi  act- 
ually introduced  in  evidence  on  the  trial,  on  account  of  the 
closing  statement  of  the  bill  of  exceptions  being  insullicient; 
and  therefore  it  is  insisted  that  no  question  is  presented  to  this 
court  for  want  of  the  evidence.  The  closing  statement  of  the 
bill  is  "  that  the  above  and  foregoing  longhand  manuserijjt  of 
the  evidence  so  taken,  reported,  and  tiled  as  aforesaid  contains 
all  the  evidence  in  said  cause."  The  contention  is  that  it  may 
be  the  evidence  in  tho  cause,  and  yet  never  have  been  intro- 
duced in  evidence  on  the  trial.  We  regard  such  contention  as 
rather  technical.  What  we  are  required  to  ascertain  is,  what 
does  the  language  employed  by  the  judge  fairly  mean  i  If  it 
means  that  such  evidence  was  actuallv  introduced  on  tho  trial, 
that  is  sufficient.  It  would  certainly  be  a  strange  construction 
of  that  language  to  say  that  the  judge  had  reference  to  evi- 
dence that  never  was  introduced  on  the  trial.  When  we  con- 
nect the  language  quoted  with  that  in  the  caption  of  the  bill 
of  exceptions,  its  meaning  is  rendered  undoubted.  That  reads 
as  follows :  "  The  following  evidence  was  delivered  and  given 
to  the  jury  trying  the  same  [the  cause],  and  the  following 
rulings  of  the  court  were  made  in  respect  to  the  admission  and 
rejection  of  evidence,  and  objections  and  exceptions  thereto 
were  made  and  taken  as  noted  therein,"  etc.  This  is  clearly 
sufficient  to  show  that  the  evidence  was  introduced. 

The  indictment  charged  that  the  alleged  perjury  had  been 
committed  by  the  accused  in  giving  testimony  as  a  witness  in 
a  trial  of  a  civil  cause  in  the  Elkhart  Circuit  Court,  wherein 
one  Martin  Peterson,  a  minor,  by  his  next  friend,  was  plaintiff, 
and  the  Lake  Shore  &  Michigan  Southern  Railway  Company 
was  defendant,  to  recover  damages  for  an  alleged  personal  in- 
jury.   The  alleged  injury  sustained  by  the  infant  was  caused 


1.   ■      I    M 


STATE  V.  HUNT. 


4^9 


by  his  jitlempt  to  get  off  of  a  certain  box  frolj,''ht  car  in  a  freight 
train  of  that  company,  while  the  train  was  in  motion,  ami  in 
wiiich  otfort  he,  while  going  down  the  hulder  in  liaste,  was 
caused  to  slip  or  lose  his  hohl,  and  fall  in  such  a  manner  as  that 
his  arms  tell  across  the  rail,  were  run  over  by  the  wheels,  crush- 
inffthein  so  they  both  had  to  be,  and  were,  amputated  between 
tlie  shoulder  and  elbow.  The  boy  seems  not  to  have  been  con- 
nected with  the  railway  company  in  any  way,  as  emjdoye  or 
otherwise,  and  was  a  mere  trespasser  on  the  car.  Tlie  ]x)int 
of  contention  on  the  trial  of  the  damage  suit,  was  whether  the 
company  was  at  fault,  in  compelling  the  boy  to  attempt  to  get 
off  while  the  train  was  running,  and  under  such  excitement  as 
ini<,'ht.  or  probably  might,  have  caused  his  fall  and  injury.  It' 
was  claiMiL'd  on  the  part  of  the  plaintiff  that  a  servant  of  the 
comiKiny— a  brakeman  on  top  of  the  car — ordered  him  off, 
threatened  him  with  violence,  applying  to  him  abusive  lan- 
guage, and  pursued  him  with  a  club,  and  struck  at  him  there- 
with, Avhich  frightened  and  alarmed  him  so  that,  in  his 
liaste  to  escajie  the  vengeance  of  the  brakeman,  he  be- 
came excited,  so  that  he  was  caused  to  slip,  and  lose  his  hold 
on  the  ladder,  which  caused  his  fall  and  injury.  The  only 
part  of  these  facts  that  the  company  controverted  on  the  trial 
of  the  damage  suit,  was  that  part  relating  to  the  conduct  of 
their  servant,  the  brakeman.  The  eviilence  of  the  company 
denied  that  part  of  the  plaintiff's  evidence  in  toto.  The  com- 
plaint charged  the  facts  to  be  as  above  indicated,  and  the 
answer  denied  them.  The  material  part  of  the  indictment  is 
as  follows  :  "  And  the  said  issue  was  then  and  there  tried  in 
the  said  Elkhart  Circuit  Court,  before  the  said  Honorable 
.John  M.  Van  Heet,  and  before  a  jury  of  said  count}'.  *  *  * 
And  upon  said  trial  it  became  material  to  said  Martin  Peter- 
son to  show,  by  evidence  in  the  cause,  that  the  said  Peterson 
was  injured  and  damaged  by  said  defendant  railway  company' 
by  the  wilful,  wrongful  and  unlawful  act  of  its  brakeman,  as 
alleged  in  said  complaint  of  the  said  Peterson;  and  it  became 
material  to  said  Peterson  to  prove  that  on  the  25th  day  of  Oc- 
tober, 1891,  the  said  freight  train  was  passing  along  the  right  of 
way  of  the  Lake  Shore  and  Michigan  Southern  Railway  Com- 
pany going  west  between  *  ♦  *  and  that  a  brakeman 
named  George  Harris,  being  then  and  there  on  the  top  of  said 
train,  ran  toward  the  said  Martin  Peterson,  and  threatened 


'r. 


'11 


isfT 


430 


AMEKICAN  CRIMINAL  REPORTS. 


! ;  ■'; 


him,  and  struck  at  him,  in  orrler  to  make  him,  the  said  Peter- 
son, get  off  of  said  train,  and  tliat  the  said  George  Harris  ran 
after  said  Martin  Peterson,  and  that  he  \m\  a  club  in  liis  liunds, 
and  that  he  struck  at  the  said  Martin  Peterson,  and  that  the 
said  Martin  Peterson  fell  off  from  the  ladder  of  a  car  upon 
which  he  was  climbing,  and  fell  under  the  wheels  of  tht?  said 
car,  and  that  he  fell  on  the  track  of  said  railway  company, 
and  that  the  wheels  of  certain  cars  ran  over  him,  and  tliat  said 
William  II.  Hunt  saw  said  Martin  Peterson  fall,  and  assisted 
to  carry  him  away  from  the  track,  and  that  one  Josepli  Lontf 
and  one  Mary  J.  Long  stood  on  the  north  side  of  tlio  track  of 
s:ud  railway  company  at  the  time  Martin  Peterson  felK  and 
that  they  were  in  sight  of  said  Peterson  when  he  fell,  and  that 
the  said  Hunt  was  on  the  south  side  of  the  track  of  said  rail- 
Avay  compian}',  behind  said  train,  and  that  he  saw  said  lirake- 
man  approach  and  threaten  and  strike  at  the  said  IVlartin  Pe- 
terson, and  that  he  saw  the  said  Martin  Peterson  on  the  toj) 
of  the  train  when  the  said  brakeman  was  approachini:'  him, 
and  saw  the  said  Martin  Peterson  fall  off,  *  *  ••  and 
that  when  said  brakeman  went  after  the  said  Martin  Peterson 
on  the  top  of  said  tnan,  the  said  Martin  Peterson  started  to 
get  on  a  ladder  on  one  em.  of  the  car,  and  ran  down  on  one 
end  of  the  car,  and  that  tiiC  said  Hunt  was  fifteen  feet  south  of 
the  track  on  which  said  train  was  running,  and  that  he  saw- 
said  Martin  Peterson  start  and  run  down  the  ladder,  and  tlien 
saw  that  he  had  fallen,  and  that  he  found  the  said  Martin  Pe- 
terson on  the  ground,  on  the  south  side  of  the  track,  after  said 
accident,  and  that  he  was  the  first  man  that  reached  tlier(\  and 
that  he  helped  carry  the  said  Martin  Peterson  away. 

And  to  sustain  said  issue,  *  *  *  one  William  11.  Hunt 
then  and  there  appeared  as  a  witness  *  *  *  on  behalf  of 
said  Martin  Peterson,  and  was  then  and  there  duly  sworn  in 
said  court,  and  took  his  corjioral  oath  before  said  court  to  tell 
the  truth,  the  whole  truth,  and  nothing  but  the  truth,  relative 
to  the  matters  then  and  there  and  therein  in  issue,  which  oath 
was  administered  *  *  *  by  the  Hon.  John  Van  I'leet, 
judge  of  said  court,  who  then  and  there  had  power  and  author- 
ity, and  was  competent,  to  administer  said  oath;  and  the  said 
William  II.  Hunt,  then  and  there,  upon  the  trial  of  said  issue, 
upon  his  oath  aforesaid,  feloniously^  wilfully,  corru])tly  and 
falsely,  before  the  said  court  and  jury  aforesaid,  did  depose, 


WPT 


STATE  V.  HUNT. 


431 


testify  and  say,  in  substance  and  to  the  effect  following,  that 
is  to  say,  that  ho,  the  said  William  H.  Hunt,  on  the  twenty- 
fifth  day  of  October  aforesaid,  knew  the  said  Martin  Potorson 
by  sight,  and  that  he,  che  said  Hunt,  was  on  the  right  of  way 
of  the  said  Lake  Shore  &  Michigan  Southern  Railway  Com- 
pany, in  the  city  of  Elkhart,  on  the  said  25th  day  of  October 
aforesaid,  between  Tenth  and  Twelfth  streets  in  said  city,  pass- 
ing down  to  the  west,  and  there  saw  a  freight  train  of  said  rail- 
way company  going  west,  and  that  he  then  and  there  saw  said 
Martin  Peterson  on  the  top  of  one  of  the  box  cars  of  said  freight 
train,  going  west,  between  said  streets,  and  that  he  then  and 
there  saw  a  brakeman  on  the  top  of  said  ti'ain  take  after 
said  Peterson,  to  make  him,  the  said  Peterson,  get  down  from 
off  of  s.iid  cars,  and  that  he  saw  said  brakeman  then  and  there 
strike  at  tlie  said  Peterson,  and  saw  said  brakeman  make  him 
get  down  from  off  said  car,  and  that  he,  the  said  "William  H. 
Hunt,  was  then  and  there  on  the  south  side  of  saitl  railway 
track,  *  *  *  and  was  only  the  length  of  two  and  a  half 
cars  from  said  Martin  Peterson  when  said  brakeman  compelled 
him  to  get  down  or  fall  from  said  car,  and  that  he,  the  said 
Hunt,  then  and  there  heard  said  brakeman  say  to  said  ^Martin 
Peterson,  while  on  the  to])  of  said  train, '  Get  off,'  and  that  the 
brakeman  then  came  to  the  end  of  the  car  where  said  Peter- 
son was,  and  struck  at  him,  and  that  the  brakeman  had  a  club, 
and  made  motions  with  it,  and  saw  the  said  Mnrtin  Peterson 
start  and  run  down  the  ladder  on  the  end  of  the  car,  and  that 
the  next  time  he  saw  said  Peterson  he  had  fallen  and  the 
whools  had  run  over  his  arms,  and  that  said  Hunt  was  the 
first  man  to  reach  or  come  to  said  Peterson  after  the  wheels 
of  the  car  had  so  passed  over  the  arms  of  said  Peterson,  and 
that  he,  the  said  "William  H.  Hunt,  helped  to  carry  said  Peter- 
son after  ho  so  fell,  from  the  railway  track,  where  he  fell,  to  a 
grass  ]/lat  near  there,  and  that  one  Joe  Long  helped  him,  the 
said  II lint,  carry  the  said  Peterson  over  to  the  plat  of  grass, 
and  that  the  said  Hunt  was  not  more  than  six  rods  distant 
from  the  said  Martin  Peterson  when  the  said  Martin  Peterson 
fell  and  was  hurt  as  aforesaid,  and  that  the  said  Martin  Peter- 
son fell  off  from  said  west  end  of  a  box  car  of  said  train 
because  the  said  brakeman  then  and  there  struck  at  the  said 
Peterson;  whereas,  in  truth  and  fact,  it  is  charged  seriatim 
that  each  one  of  these  matters  so  testified  to  is  false,  as  the 


Sfi'  I 


TTTTT-T^-rT- 


'r,4 


.  f 


t  ._! 


>    ! 


AMERICAN  CRIMINAL  REPORTS. 


said  "William  TI.  Hunt  well  knew."  The  shorthand  it'iioitcr 
who  had  taken  down  the  testimony  in  the  damage  suit,  heiiin 
sworn  as  a  witness  on  behalf  of  the  state,  and  asked  Mlietlier 
the  following  question  had  been  asked  of  the  defendant  Jlunt 
as  a  Witness  in  the  damagt^  suit,  to  wit,  "  After  he  fell,  who 
was  the  first  person  that  got  there  ?"  objection  being  inter- 
posed by  the  defendant  to  the  question,  the  state  i)r<)|)()SL'(l  to 
prove  that  his  answer  ';o  that  question  was,  "  Tlu;  first 
two  men  I  recollect  was  Joe  Long  and  Carlin,  and  tlie  first 
woman  was  Mrs.  Long."  There  was  no  error  in  sustuiniii" 
the  objection,  because  the  charge  in  the  indictnuMit  is  that 
Hunt  falsely  swore  that  he  was  the  first  man  that  reacliod  the 
injured  boy  after  he  fell.  The  offered  evidence  (!<)i's  not  pro- 
pose to  prove  that  he  testified  as  charged  in  the  indictment. 
but  that  he  testified  to  the  contrary — that  two  other  men 
were  the  first  to  reach  the  bo}'  after  his  injury. 

In  the  damage  suit,  appellee,  as  a  witness  on  bch  'f  of 
Peterson,  had  answered  questions  as  follows;  "  Where  was  it 
he  fell?  A.  On  the  track.  Q.  Then  what  wasdoiu.'^  A. 
He  was  ])icked  up,  and  carried  back  to  the  side."  The  state 
then  ])ro])osed  to  prove  the  next  question  to  and  answer  liy 
appellee,  as  follows :  "Who  did  it?  A.  I  helpotl  soine  one. 
There  was  a  man  there.  I  don't  know  who  he  was.  There 
was  another  man  there."  Proof  of  this  testimony  given 
by  Hunt  in  the  damage  suit  was  objected  to  because  it  did  net 
tend  to  support  the  charges  of  perjury  in  the  indictment.  The 
reason  urged  herein  support  of  the  ruling  excluding  it  is  that 
it  was  not  material  to  the  point  in  question,  and  that  the  point 
in  question  in  the  civil  suit  was  whether  the  brakcmuii,  the 
servant  of  the  company,  had  been  guilty  of  the  wilful  miscon- 
duct of  driving  the  bo3'  off  the  train  while  it  was  running. 
That,  evidently,  was  the  principal  issue — the  main  point  in 
question — in  the  civil  suit,  to  which  the  alleged  false  testimony 
was  intended  to  be  directed.  If  such  testimony  was  wholly  im- 
material to  that  question,  its  absolute  falsity  would  not  con- 
stitute perjury.  1  Burns'  Rev.  St.  1894,  §  21)03  (Rev.  St.  1S81, 
§  2000);  State  v.  Jiei/nolds,  108  Ind.  353,  9  N.  E.  287;  State  v. 
Cunningham,  116  Ind.  209,  18  K  E.  613.  The  fact  that  ap- 
pellee helped  carry  the  boy  back  or  to  the  side  alone  was 
wholly  immaterial  to  the  point  in  question  in  the  civil  suit. 
But  as  connected  with  the  truth  of  the  appellee's  testimony  as 


STATE  V.  HUNT. 


433 


to  the  misconduct  of  the  brakcman,  and  as  to  whetlier  the  ap- 
pellee was  present,  and  saw  the  whole  transaction,  the  evidence 
mii'ht  l)e  so  material  as  to  constitute  a  basis  for  the  assign- 
ment of  the  perjury  thereon,  as  is  done  in  the  indictment  be- 
f  If.  I  n  such  a  case  the  circumstances  surrounding  the  transac- 
luii  detailed  by  the  witness  may  be  such  as  that  they  greatly 
ctrengthen  tlie  probability  that  the  witness  was  present,  and 
saw  and  witnesscil  the  facts  material  to  the  point  in  question 
towli  ''  'le  has  testilied,  though  those  circumstances,  in  and 
of  tluMHselvcs  alone  considered,  would  not  be  material  to  the 
point  in  (]uestion.  IS  Am.  tfc  Eng.  Enc.  Law,  310,  311  and  au- 
thorities there  cited;  2  Arclib.  Cr.  Tr.  &  PI.  1727;  3  Greenl.  Ev. 
f.  lO'v  2  Whart.  Cr.  Law,  §  1277.  ■  "As  where,  in  an  action  for 
iicsiuiss  by  sheep,  a  witness  proved  that  he  saw  thirty  or 
foiiv  sheep  in  the  close,  and  he  knew  they  were  the  defendant's 
by  their  being  marked  in  a  particular  way,  describing  it, 
whereas  the  defendant  never  marked  his  sheep  in  that  way, 
this  was  holden  to  be  material,  for  the  reason  assigned  by  him 
made  his  account  more  credible."  2  Archb.  Cr.  Pr.  *fe  PI.  1727. 
A  circumstantial  account  of  all  that  took  i)lace  on  the  occasion 
of  the  boy's  injury  may  have  led  the  mind  of  the  jury  to  give 
more  credence  to  the  appellee's  testimony  that  he  was  present 
at  all,  and  saw  the  brakeman's  alleged  misconduct.  A  cross- 
exaniinaticm  calling  out  details  and  circumstances  surrounding 
a  transaction  to  which  a  witness  has  testified  is  often  an  effect- 
ive means  of  determining  whether  he  has  told  the  truth  about 
the  main  fact  testified  to;  and  the  idea  that  a  witness  may 
bolster  up  one  false  statement  by  another,  and  escape  the 
])enalty  of  perjury  for  such  second  statement  because  the  sec- 
ond false  statement  is  not  directly  material  to  the  point  in 
question,  is  one  not  favored  by  the  law.  It  is  true,  such  sec- 
ond statement  must  be  material  to  the  point  in  question.  Put 
it  is  indirectly  material  if  it  tend  to  support  or  induce  credence 
in  the  first  statement,  and  that  is  sufficient  materiality  to 
form  the  basis  of  an  assignment  of  perjury.  We  are  of  opinion 
that  the  court  erred  in  the  exclusion  of  that  evidence.  The 
ruling  as  to  the  thirty-fifth  question  to  the  shorthand  reporter 
is  sultstantially  the  same  as  the  one  last  mentioned,  and  it  was 
error. 

Questions  38  to  70,  both  inclusive,  and  tlie  answers  thereto 
by  the  same  witness,  and  excluded   by  the  court,  proposed  to 


'i! 


nmwW., 


484 


AMERICAN  CRIMINAL  REPORTS. 


prove  what  appellee  had  testified  to  on  cross-examination 
touching  his  testimony  in  chief  in  the  civil  suit  as  to  the  mis- 
conduct of  the  brakeman.  It  is  laid  down  in  the  authorities  that 
"  the  witness'  answer  on  his  cross-examination  are  material 
and  may  be  assigned  as  perjury,  however  discursive  tliev  may 
be,  if  they  go  to  his  credit."  2  Whart.  Cr.  Law,  §§  1277, 127D- 
3  Greenl.  Ev.  §  195.  So  far  as  these  several  matters  contained 
in  said  questions  and  answers  had  bevm  assigned  in  the  indict- 
ment for  perjury,  and  tended  to  strenijthen  or  give  credit  to 
the  evidence  on  the  point  in  question,  they  were  admissible  in 
evidence,  and  the  court  erretl  in  excluding  most  of  them. 

One  Mary  Overlease,  as  a  witness  on  behalf  of  the  state, 
testified  to  declarations  made  by  the  defendant,  out  of  court, 
to  the  effect  that  she  did  not  see  a  brakeman    knock  the 
boy  from   the  train,  and  that  tliere  was  no  brakeman  near 
him.    The  defendant  was  permitted  to  prove  by  Gideon  Ma- 
comber,  over  the  objection  of  the  state,  that  said  witness  had 
heard  the  accused  make  other  declarations  out  of  court  con- 
sistent with  his  alleged  false  testimony,  and  to  the  etfect  tliat 
he  had  seen  the  boy  driven  off  of  the  train.     As  was  said  in 
Turnpike   Co.  v.  Hiel,  118  Ind.  135,  20  N.  E.  703,  "Where  a 
party  makes  admissions,  they  are  accepted  as  original  evidence, 
upon  the  ground  that  the  admissions  of  a  party  against  his 
interest  are  made  because  they  truthfully  ejnl)ody  tlie  facts, 
and  they  are  therefore  substantial  proof  of  the  facts  admitted. 
They  relate  to  the  facts  themselves,  as  facts,  and  not  merely 
to  the  question  of  the  trustworthiness  of  the  party  as  a  witness. 
If  the  appellee  had  not  testified  at  all,  his  admissions  would 
have  been  competent  as  original  evidence.     The  admissions 
tended  to  prove  that  the  fact  was  that  the  accident  did  not 
occur  in  the  manner  described  in  his  testimony,  but  in  an  en- 
tirely different  manner.     These  admissions  against  his  interest 
were  evidence  that  the  facts  stated  as  the  cause  of  action  did 
not  exist,  and  therefore  evidence  of  these  admissions  did  much 
more  than  affect  the  question  of  credibility.     Blomom  v.  Jinr- 
rett,  37  N.  Y.  434;  Lucas  v.  Flhin,  35  Iowa  9;  UoihieH  v.  Buh's, 
102  Ind.  494;  1  N.  E.  692.     The  cases  which  declare  that, 
where  a  witness  is  impeached  by  evidence  of  contradictory 
statements  made  out  of  court,  he  ma}'  be  sustained  by  evidence 
of  statements  about  the  same  time  corresponding  with  those 
made  on  the  trial,  are  not  in  point.     *    *    «    The  rule  which 


T^ 


STATE  V.  HUNT. 


435 


here  applies  is  the  general  one  that  a  party  can  not  give  his 
own  declarations  in  evidence."  See  Alleti  v.  Davis,  101  Ind. 
187;  IIo<f<J<^s  1).  Balen,  102  Ind.  494;  1  N.  E.  692.  We  think 
the  court  erred  in  receiving  the  testimony. 

The  court  permitted  to  be  read  in  evidence,  over  the  ob- 
jection of  the  state,  an  allowance  by  the  regular  judge  of  an 
account  for  $619.13,  and  its  payment  out  of  the  county  treas- 
ury, in  payment  for  services  of  detectives  in  discovering  evi- 
dence of  the  guilt  of  the  accused,  with  others,  of  the  crim.e 
chiirged  in  the  indictment.  A  large  amount  of  other  evidence 
of  the  employment  by  the  judge  of  the  court  of  persons  to  dis- 
cover evidence  pointing  to  appellee's  guilt  of  the  charge  in  the 
indictment,  was  admitted  over  the  objection  of  the  state.  No 
part  of  such  evidence,  as  received,  had  the  slightest  bearing 
upon  the  issue  on  trial,  namely,  whether  the  appellee  had 
committed  perjury.  If  such  irrelevant  evidence  had  no  tend- 
ency to  mislead  the  jury,  its  admission  would  not  constitute 
available  error.  Zouisvilk,  etc.,  Jitiilioaij  Co.  v.  Mllleif,  37  N.  E. 
3i3.  l?ut,  where  such  irrelevant  and  immaterial  evidence  is 
liable  or  likely  to  mislead  the  jury,  its  admission  is  material 
and  prejudicial  error.  Here  the  argument  made  in  this  court 
on  that  point  indicates  the  probable  trend  of  the  argument 
below,  and  that  is  that  the  regular  judge  had  overstepped  the 
bounds  of  his  autiiority  in  spending  that  much  of  the  people's 
money  in  attempting  to  ferret  out  the  alleged  crime.  Whether 
the  regular  judge,  or  any  circuit  court,  has  power  to  so  expeiid 
money  in  the  discovery  of  crime,  is  not  necessary  that  we 
should  decide,  and  we  intimate  no  opinion  thereon.  This 
might  have  tended  to  prejudice  the  jury,  who  were  presumably 
taxpayers  of  the  county,  against  the  prosecution.  The  court 
erred  in  receiving  that  evidence. 

The  giving  and  refusal  to  give  a  large  number  of  instruc- 
tions are  assigned  p;pecifically  and  severally  as  error  here.  The 
instructions  are  none  of  them  embodied  in  a  bill  of  exceptions. 
They  are  copied  into  the  transcript,  with  no  other  authenti- 
cation of  them  as  parts  of  the  record  below  than  a  statement 
on  the  nuirgin  of  each,  to  wit:  "  Given,  and  excepted  to  by  the 
state.  October  17, '98.  Joseph  W.  Adair,  Judge."  "Refused 
and  excepted  by  the  state.  Oct.  17,  '93.  Joseph  W.  Adair 
Judge."  Treating  these  marginal  statenumts  as  if  they  were 
in  the  proper  legal  form — for  many  of  tliem  are  so — we  hold 


436 


AMERICAN  CRIMINAL  REPORTS. 


that  the  instructions  are  not  in  the  record.  It  has  been  lielil 
that  instructions  in  criminal  cases  can  not  be  incorporated 
in  the  record  in  that  way,  thou/T^h  they  maybe  so  incorporated 
in  a  civil  case,  and  that  in  a  criminal  case  they  can  only  be 
brought  into  the  record  by  a  bill  of  exceptions.  Zei'cnok  v. 
State,  105  Ind.  277;  4  N.  E.  852;  Meredith  v.  State,  122  Ind. 
514;  24  N.  E.  161.  The  instructions  not  being  in  tlio  record, 
no  question  as  to  the  correctness  of  the  action  of  the  court  in 
giving  and  refusing  the  same  is  presented.  The  appeal  is  sus- 
tained, at  the  costs  of  the  appellee  as  to  the  appeal. 

Note. — Evidence. — A  conviction  of  perjury  may  bo  had  upon  ciicum- 
stantiai  evidence.  It  is  not  required  in  every  case  that  the  two  witncssis 
must  fiwear  directly  adversely  to  the  fact  or  facts  sworn  to  by  tlu>  (Ifftnl- 
ant,  but  it  is  sufficient  when  the  facts  sworn  to  by  said  witnessi-n,  if  true, 
conclusively  demonstrate  defendant's  guilt.  Thus,  if  the  facts  so  sworn  to. 
if  true,  show  that  defendant  must  have  been  ignorant  of  the  matter  alxmi 
which  he  swore,  it  is  sufficient  to  sustain  a  conviction  (.Maine's  (Sine,  26 
Tex.  App.  22),  or  when  the  facts  testified  to  by  said  witnesses  conclusivi'ly 
show,  if  true,  that  defendant  swore  contrary  to  what  he  necessarily  must 
have  known  to  be  the  truth.  U.  S.  v.  Wood,  14  Pet.  430;  2  Bisli.  Cr,  Pro- 
cedure. ^  932;  Bench  v.  State,  32  Tex.  Cr.  Rep.  240. 

Indictment. — What  must  be  alleged. — See  State  v.  Fulason,  79  5Ie.  117; 
7  Am.  Cr.  Rep.  495,  note  497-499. 

Instructions. — On  a  trial  for  perjuiy  it  is  the  duty  of  the  court  to  instruct 
the  jury  as  to  what  facts  would  show  material  testimony.  2  Whar.  Cr. 
Law,  §  1284,-  Cothran  v.  State,  39  Miss.  541;  Power  v.  Price,  16  Wend.  44: ; 
State  V.  Lewis,  10  Kan.  157;  People  v.  Clenientshaw,  59  Cal.  385.  In  porjurj 
cases  it  is  essantial  that  the  jury  b3  instructod  that  a  conviction  can  not  be 
had  except  uijon  the  testimony  of  two  credible  witnesses,  or  of  one  credible 
witness  corroborated  strongly  by  other  testimony  as  to  the  falsity  of  (lifcntl- 
ant's  statement  under  oath.  Code,  Crim.  Proc.,  Art.  746;  Wilson  v.  State,  27 
Tex.  App.  47;  Orandison  v.  State,  29  Tex.  App.  180.  The  same  rules  apply 
in  cases  of  false  swearing  as  in  perjury,  as  to  the  quantum  of  proof,  and. 
"  to  prove  that  the  assertitm  or  declaration  was  false  in  fact  there  inuRt  be 
the  same  corroboration  of  a  witness,  either  by  another  witness,  or  by  addi- 
tional circumstances,  as  is  reiiuired  to  support  a  charge  of  perjury."  7 
Amer.  &  Eng.  Enc.  Law,  p.  794,  and  note  5;  Re(j.  v.  lirowniny,  3  Cox.  Crim. 
Cas.  437;  Ayuirre  v.  State,  si'2>ra. 


Stokes  et  al.  v.  United  States. 

(9  C.  C.  A.  152.) 

Post-Office:  Use  of  mails  to  defraud. 

The  use  of  the  mails  for  promoting  a  scheme  to  defraud  (Rev.    St.   §  •'>4P0V 
being  punishable  bj  impriscnment  in  a  state  penitentiary  not  c.xcetd- 


STOKES  ET  AL.  v.  UNITED  STATES. 


437 


ing  pislitecn  months,  is  an  "infamous  crime ; "  and  lienee  a  conviction 
tht'rtH)f  is  reviewable  on  error  in  supreme  court,  and  not  in  tlie  circuit 
court  of  appeals.    Judiciary  Act,  March  3, 1891,  g§5,  6. 

In  error  to  the  District  Court  of  the  United  States  for  tlie 
Southern  District  of  Alabama. 

Indictment  of  J.  T.  Stokes,  Abrain  Kendrick,  A.  J.  Ken- 
(Irick,  E.  II.  Cook,  Samuel  il.  Mixon,  Morgan  Mixon,  D.  J. 
Morgan,  J.  D.  Pinkerton  and  R  S.  Lane.  Defendants,  having 
been  tried,  convicted,  and  senteucad,  sued  out  a  writ  of  error 
to  this  court. 

/,  D.  Burnett,  for  phiintiffs  in  error. 
/.  N.  Miller,  for  the  United  States. 

Before  Pardke  and  McCoumick,  Circuit  Judges. 

Pardke,  Circuit  Judge.  Sec.  54S0  of  the  Revised  Statutes 
of  the  United  States  provides  : 

"If  any  person  having  devised  or  intending  to  devise  any 
scheme  or  artilice  to  defraud  or  be  effected  by  either  opening 
or  intending  to  open  correspondence  or  communication  with 
any  otlier  person,  whether  resident  within  or  outside  of  the 
United  States,  by  means  of  the  post-ollice  estabUshment  of  the 
United  States,  or  by  inciting  such  otlier  person  to  open  com- 
munication with  the  person  so  devising  or  intending,  shall,  in 
and  for  executing  such  scheme  or  artifice,  or  attempting  so  to 
do,  place  any  letter  or  packet  in  any  post-olliue  of  the  United 
States,  or  take  or  receive  any  therefrom,  such  person,  so  mis- 
using the  post-o1Uj«  establislimont,  shall  be  punishal)le  by  a 
tine  of  not  more  than  five  hundred  dollars,  and  by  imprison- 
ment for  not  more  than  eighteen  months,  or  by  both  such  pun- 
ishments. The  indictment,  iiiformatujn  or  complaint  may  sev- 
erally charge  offenses  to  tin;  number  of  three  when  committed 
witliin  the  same  six  calendar  months;  but  the  court  thereupon 
shall  give  a  single  sentence,  and  shall  proportion  the  punish- 
nifint  ('.s|)('(nally  to  the  degree  in  which  the  abuse  of  the  post- 
oillce  establishment  enters  as  an  instrument  into  such  fraudu- 
lent scheme  and  device." 

For  violation  of  this  statute,  J.  T.  Stokes,  Abram  Kendrick, 
A.  J.  Kendrick,  E.  IL  Cook,  Samuel  11.  Mixon,  Morgan  Mixon, 
D.  J.  Morgan,  J.  D.  Pinkerton  and  E.  S.  Lane  were  indicted, 


*il 


■  f 


^[-■^^^PTp^'fT 


438 


.  AMERICAN  CRIMINAL  REPORTS. 


tried  and  convicted,  and  upon  conviction  were  sentenced  as 
follows:  Each  of  them  to  pay  a  fine  of  $100,  with  the  costs 
of  the  prosecution;  and  Morgan  Mixon  and  Abram  Kendnck 
to  be  imprisoned  in  the  county  jail  of  Conecuh  countv  tor  a 
])eriod  of  six  months;  E.  II.  Cook  and  Samuel  II.  Alixon  to  be 
imprisoned  in  said  county  jail  at  Conecuh  county  for  a  period 
of  eight  months;  A.  J.  Kendrick  and  B.  S.  Lane  to  l)e  impris- 
oned in  the  state  penitentiary  at  Anamosa,  Iowa,  for  a  puriod 
of  fifteen  months,  and  J.  T.  Stokes,  D.  J.  Morgan  and  J.  D. 
Pinkerton,  to  be  imprisoned  in  said  penitentiary  at  Anamosa, 
Iowa,  for  a  period  of  twelve  months.  All  of  the  said  parties 
sued  out  this  writ  of  error. 

We  are  of  the  opinion  that  it  must  be  dismissed  for  want  of 
jurisdiction  in  this  court  to  review  the  case.  The  fifth  section 
of  the  "Act  to  establish  circuit  courts  of  appeals  and  to  define 
and  regulate,  in  certain  cases,  their  jurisdiction  of  the  courts  of 
the  United  States  and  for  other  purposes,"  approved  March  3, 
1S91,  declares  that  "appeals  or  writs  of  error  may  be  taken 
from  the  district  courts  or  from  the  existing  circuit  courts  di- 
rect to  the  supreme  court  in  the  following  cases :  *  *  * 
in  cases  of  conviction  of  a  capital  or  otherwise  infamous  crinie 
*  *  *  "  The  sixth  section  of  said  act  gives  "  jurisdiction  to 
the  circuit  courts  of  appeals  in  all  cases  other  than  those  pro- 
vided for  in  the  preceding  (fifth)  section  of  this  act,"  etc.  The 
question,  then,  is  whether  the  plaintiffs  in  error  wore  convicted 
in  the  court  below  of  an  infamous  crime.  An  infamous  crime, 
within  the  meaning  of  the  fifth  amendment  to  the  constitution 
has  been  clearly  defined  by  the  Supreme  Court  of  tlie  United 
States  in  Eje  parte  Wilson,  114  U.  S.  417-429,  as  follows :  "  Our 
judgment  is,  that  a  crime  punishable  by  imprisonment  for  a 
term  of  years  at  hard  labor,  is  an  infamous  crime,  within  the 
meaning  of  the  fifth  amendment  to  the  constitution; "  and  in 
Mackin  v.  United  States,  117  U.  S.  348,  6  Sup.  Ct.  777,  as 
follows :  "  A  crime  punishable  by  imprisonment  in  a  state 
prison  or  penitentiary,  with  or  without  hard  labor,  is  an  in- 
famous crime,  within  the  provision  of  the  fifth  amendment  to 
the  constitution."  According  to  these  cases,  the  test  is  whether 
the  crime  is  one  for  which  the  statutes  authorize  the  court  to 
award  an  infamous  punishment,  not  whether  the  punishment 
ultimately  awarded  is  an  infamous  one. 

These  decisions  have  been  followed  in  Ex  parte  Bain,  121 


^^ 


PEOPLE  EX  REL.  v.  COURT  OF  SESSIONS,  MONROE  CO. 


439 


U.  S.; '  Parl'lnson  v.  UnitedStates.  121  U.  S.  281;  United  States  v. 
J)e  Walt,  128  U.  S.  393,  and  In  re  Mills,  135  U.  S.  2«3-2G7. 
All  tlieso  decisions  wore  rendered  prior  to  the  passage  of  the 
act  of  1891,  establishing  the  circuit  courts  of  appeals;  and 
therefore  the  words  "  infamous  crime  "  in  the  fifth  section  of 
the  act  of  1891,  had  a  fixed  and  definite  meaning,  declared  by 
the  courts  at  the  time  the  law  was  passed,  and  that  meaning 
must  be  given  effect  in  construing  the  statute  {The  Ahhots- 
ford,  98  U.  S.  440;  Logan  v.  United  States,  144  U.  S.  263-301), 
even  if  it  were  not  apparent,  as  it  is,  that  the  words  "  capital 
or  otherwise  infamous  crime  "  were  used  with  reference  to  the 
fifth  amendment  to  the  constitution.  In  the  case  in  hand  the 
punishment,  in  addition  to  a  fine  which  the  court  was  author- 
ized to  impose,  was  imprisonment  not  exceeding  eighteen 
months  in  a  state  penitentiary.  See  Kev.  St.  U.  S.,  §§  5480, 
5541. 

We  are  therefore  compelled  to  hold  that  the  plaintiffs  in 
error  were  convicted  of  an  infamous  crime,  and  that  no  writ 
of  error  lies  in  this  court  to  review  such  conviction.  Dis- 
missed. 


Hi 


People  ex  kel.  Forsyth,  District  Attorney,  v.  Court  of  Ses- 
sions OF  Monroe  County. 

(141  N.  Y.  288.) 

Powers  op  Court  to  Suspend  Sentence. 

1.  Pen.  Code,  §  13,  declaring  that  the  sections  of  the  Code  which  make  cer- 

tain crimes  punishable  devolve  a  duty  on  the  court  to  impose  the  pun- 
islmient  prescribed,  did  not  abrogate  the  common-law  right  of  criminal 
courts  to  suspend  sentence.    21  N.  Y.  Supp.  659,  reversed. 

2.  Liiws  1893,  c.  279,  permitting  the  criminal  courts  to  suspend  sentence 

during  good  behavior  of  the  convict,  where  the  maximum  term  pre- 
scribed does  not  exceed  ten  years,  and  the  convict  has  never  before  been 
convicted  of  a  felony,  does  not  conflict  with  Const.,  art.  4,  §  5,  vesting 
in  the  governor  the  exclusive  power  to  grant  reprieves  and  pardons. 


Appeal  from  Supreme  Court,  General  Term,  Fifth  Depart- 
ment. 

Mandamus  on  relation  of  George  D.  Forsyth,  district  at- 
torney, to  the  Court  of  Sessions  of  Monroe  County,  to  pass 


w        > 


440 


AMERICAN   CRIMINAL  REPORTS. 


sentence  on  John  Attri(l<i:o  on  plea  of  guilty  of  grand  larceny 
in  the  second  degree.  From  a  judgment  of  the  general  term 
(21  N.  Y.  Supp.  659)  afiinning  the  special  term's  order  grant- 
ing the  writ,  (19  N.  Y.  Sui)p.  50S,)  defendant  appeals,  lio- 
versed. 

jr.  B.  llallool^  for  appellant. 
Fred  C.  JIanford,  for  respondent. 

O'Brien,  J.  The  question  presented  by  this  appeal  is  novel 
and  important.  The  Supromo  Court  has,  by  mandamus,  com. 
manded  the  Court  of  Sessions  to  proceed  to  judgment  in  a  crim- 
inal case,  and  to  pass  sentence  upon  the  defendant  after  con- 
viction. The  power  of  the  court  to  grant  the  writ  under  the 
circumstances  clisclosed  by  the  record  is  denied.  On  the  4tli 
of  March,  1892,  John  Attridge  was  convicted  in  the  Cinirt  of 
Sessions  of  Monroe  County,  composed  of  the  county  judge  and 
two  justices  of  sessions,  upon  his  own  plea  of  guilty,  of  the 
crime  of  grand  larceny  in  the  second  degree.  The  defendant 
was  a  clerk  in  a  mercantile  firm,  and  the  olfonse  consisted  in 
the  appropriation  to  his  own  use  of  a  sum  of  money,  which 
belonged  to  his  employers,  and  which  came  to  his  possession, 
or  under  his  charge,  by  virtue  of  his  employment.  There 
were  supposed  to  be  certain  mitigating  circumstances  con- 
nected with  the  transaction,  growing  out  of  his  youth,  i)revi- 
ous  good  character,  and  otherwise,  that  were  presented  to  the 
court  through  a  petition  signed  by  numerous  resi)ectahle  citi- 
zens, who  prayed  that  his  sentence  be  susjKmded.  Three  days 
after  the  conviction  he  was  brought  before  the  court,  and  tiie 
county  judge  presiding  sentenced  him  to  imprisonment.  The 
two  justices  of  sessions  dissented,  and  announced,  as  the 
judgment  of  the  court,  that  sentence  be  suspended. 

The  defendant  was  remanded  to  the  custody  of  the  sheritf, 
but  discharged  soon  after  from  the  commitment  upon  /utbt'us 
corpus  granted  by  a  justice  of  the  supremo  court  holding  a 
court  of  oyer  and  terminer,  on  the  ground  that  the  sentence 
pronounced  by  the  county  judge,  not  having  been  concnirred 
in  by  a  majority  of  the  court,  Avas  illegal,  lie  was,  however, 
remanded  to  the  custody  of  the  sherilf,  to  the  end  that  the 
court  of  sessions  might  pronounce  a  legal  sentence  in  tlie  case. 
He  was  again  brought  before  that  court  on  the  14th  of  l^huch, 


PEOPLE  EX  REL.  v.  COURT  OF  SESSIONS,  MONROE  GO.    441 

and  tlie  jud'^inont  thereupon  given  that  sentence  be  susjjended 
durinf,'  f^ood  behavior.  The  county  judge  dissented,  and  the 
defendant  was  thereupon  discharged  from  custody.  On  the 
27th  of  Juno  following,  the  supreme  court  at  special  term,  upon 
the  application  of  the  district  attorney,  granted  a  jieremptory 
writ  of  mandamus  commanding  the  court  of  sessions  to  ])ro- 
c^ctl  to  judgment,  and  to  sentence  the  defen<lant  to  the  pun- 
ishinont  ])rescribed  by  law.  The  order  granting  the  writ  has 
been  allirmed  at  the  general  term. 

Tlio  i)r«'cise  question  involved,  therefore,  is  the  power  of  a 
court  of  record,  possessing  jurisdiction  in  criminal  cases,  to 
suspend  judgment  after  conviction.  The  court  of  sessiims  is  a 
court  possessing  superior  criminal  jurisdiction  and  common- 
law  powers.  People  V.  Bradner,  107  N.  Y.  1.  It  possesses  all 
the  powers  formerly  exercised  by  superior  courts  of  crimimil 
jurisdiction  in  England,  except  so  far  as  these  jjowers  have 
been  clianged  or  abrogated  by  statute.  There  can,  1  think,  be 
nod()ui)t  tiiat  the  power  to  suspend  sentence  after  conviction 
was  inherent  in  all  such  courts  at  common  law.  The  practice 
had  its  origin  in  the  hardships  resulting  from  peculiar  rules  of 
criminal  procedure,  when  the  court  had  no  power  to  grant  a 
new  trial,  either  u|)on  the  same  or  additional  evidence,  and  the 
verdict  was  not  reviewable  upon  the  facts  by  any  higher  court. 
The  power,  as  thus  exercised,  is  described  in  this  language  by 
Lord  Hale :  "  Som  'times  the  judge  reprieves  before  judgment, 
as  whore  he  is  not  satisfied  with  the  verdict,  or  the  evidence 
is  uncertain,  or  the  indictment  is  insufficient,  or  doubtful 
whether  within  clergy;  also,  when  favorable  or  extenuating  cir- 
cumstances appear,  and  when  youths  are  convicted  of  their 
first  olFense.  And  these  arbitrary  reprieves  may  be  granted 
or  taken  off  by  the  justices  of  gaol  delivery,  although  their 
sessions  be  adjourned  or  finished;  and  this,  by  reason  of  com- 
mon usage."  2  Hale,  P.  C.  c.  58,  p.  412.  This  power  be- 
longed, of  common  right,  to  every  tribunal  invested  Avitli 
autiiority  to  award  execution  in  a  criminal  case.  1  Chit.  Or. 
Law  (ist  Ed.),  617,  758.  Without  attempting  to  collate  all 
the  autiiorities  on  the  subject,  it  is  sufficient  to  say  that  the 
power  to  suspend  sentence  at  common  law  is  asserted  by  writers 
of  acknowledged  authority  on  criminal  jurisprudence,  by  the 
uniform  practice  of  the  courts,  and  numerous  adjudged  cases. 
2  Hawk.  P.  C.  c.  51,  ^  8;  1  Bish.  Cr.  Proc,  §  1124;  4  Bl.  Comm. 


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c.  31;  People  V.  Gmves,  31  Hun  382;  People  v.  Tlarrhujton,  15 
Abb.  N.  C.  161;  People  v.  Whipple,  9  Cow.  715;  Carnal  v. 
People,  1  Parker  Cr.  R.  262,  266;  Com.,  v.  Dowdican,  115 
Maes.  136;  State  v.  Addy,  43  N.  J.  Law  114;  Weaver  v.  People, 
33  Mich.  297;  Peoph  v.  Reilley,  53  Mich.  260;  18  N.  W.  S49; 
Com.  V.  31'aloney,  154  Mass.  205;  13  N.  E.  482;  Sylvester  v.  State, 
65  N.  II.  193. 

The  courts  below  were  of  the  opinion  that  section  12  of  the 
penal  code  deprives  the  court,  in  all  cases,  of  any  discretion 
Avith  respect  to  the  imposition  of  the  punishment  prescribed 
by  law.  The  language  of  that  section  is  as  follows :  "  Tlie 
several  sections  of  this  code  which  declare  certain  crimes  to  be 
punishable  as  therein  mentioned,  devolve  a  duty  upon  the 
court  authorized  to  pass  sentence  to  impose  the  punishment 
prescribed."  This  provision  was  not  intended  to,  and  did  not, 
abrogate  any  power  over  the  judgment  which  the  courts  i)os- 
sessed  before.  The  provision  is  declaratory  of  the  law  as  it 
always  existed,  for  it  was  always  the  duty  of  the  court  to  im- 
pose the  punishment  upon  conviction;  but  this  duty  was  never 
supposed  to  be  inconsistent  with  the  power  to  suspend  tlie 
judgment  till  the  next  term  of  the  court,  or  indefinitely.  Since 
the  granting  of  the  writ  in  this  case,  the  above  section  of  the 
penal  code  has  been  amended  by  chapter  279  of  the  laws  of 
1893  by  adding  to  it  these  words:  "But  such  court  may,  in 
its  discretion,  suspend  sentence,  during  the  good  behavior  of 
the  person  convicted,  where  the  maximum  term  of  imprison- 
ment prescribed  by  law  does  not  exceed  ten  years,  and  such 
person  has  never  before  been  convicted  of  a  felony."  It  is  ad- 
mitted by  the  learned  district  attorney  that  this  amendment, 
tliough  passed  since  the  writ  in  this  case  was  directed  by  the 
order,  is  applicable  to  this  case,  as  the  defendant  in  tiie  indict- 
ment has  not  yet  been  sentenced,  and,  if  brought  before  the 
court  for  that  purpose,  pursuant  to  the  command  of  the  writ, 
sentence  may  be  suspended  if  the  enactment  is  valid.  He 
meets  this  difficulty,  however,  by  strenuously  insisting  that 
the  amendment  encroaches  upon  the  power  of  the  governor  to 
grant  reprieves  and  pardons,  which  is  exclusively  vested  in 
him  under  the  state  constitution.  Const.,  art.  4,  §  5.  There 
can  be  no  doubt  that,  if  the  amendment  distributes  any  part 
of  the  pardoning  power  conferred  upon  the  executive  to  some 
other  department  of  the  government,  the  legislation  is  in  con- 


on,  15 
nal  i\ 
115 

849; 
State, 


PEOPLE  EX  REL.  r.  COURT  OF  SESSIONS,  MONROE  CO.   443 

flict  with  the  constitution,  and  invalid.  The  power  to  suspend 
S3ntence  and  the  power  to  grant  reprieves  and  pardons,  as  un- 
derstood when  the  constitution  was  adopted,  are  totally  dis- 
tinct and  different  in  their  origin  and  nature.  Tiie  former  was 
always  a  part  of  the  judicial  power;  the  latter  was  always  a 
part  of  the  executive  power.  The  suspension  of  the  sentence 
slui])ly  postpones  the  judgment  of  the  court  temporarily  or  in- 
definitely, but  the  conviction  and  liability  following  it,  and  all 
civil  disabilities,  remain  and  become  operative  when  judgment 
is  rendered.  A  pardon  reaches  both  the  punishment  pre- 
scribed for  the  offense,  and  the  guilt  of  the  offender.  It  re- 
leases the  punishment,  and  blots  out  of  existence  the  guilt,  so 
that,  in  the  eye  of  the  law,  the  offender  is  as  innocent  as  if  he 
had  never  committed  the  offense.  It  removes  the  penalties 
and  Jisabilities,  and  restores  him  to  all  his  civil  rights.  It 
makes  him,  as  it  were,  .a  new  man,  and  gives  him  a  new  credit 
and  capacity.  Ec  parte  Garland,  4  Wall.  333;  U.  S.  v.  Klein^ 
13  Wall.  138;  Knnte  v.  U.  S.,  05  U.  S.  149.  The  framers  of 
the  federal  and  state  constitutions  were  perfectly  familiar  with 
the  principles  governing  the  power  to  grant  pardons,  and  it 
was  conferred  by  these  instruments  upon  the  executive  with 
full  knowledge  of  the  law  upon  the  subject  and  the  wonls  of 
the  constitution  were  used  to  express  the  authority  formerly 
exorcised  by  the  E 11  i^lish  crown,  or  by  its  representatives  in  the 
colonies.  Ex  parte  Welh,  18  How.  307.  As  this  power  was 
understood,  it  did  not  comprehend  any  part  of  the  judiciul 
functions  to  suspend  sentence,  and  it  was  never  intended  that 
the  authority  to  grant  reprieves  and  pardons  should  abrogate, 
or  in  any  degree  restrict,  the  exercise  of  that  power  in  regard 
to  its  own  judgments,  that  criminal  courts  had  so  long  main- 
tained. The  two  powers,  so  distinct  and  different  in  their 
nature  and  character,  were  still  left  separate  and  distinct,  the 
one  to  be  exercised  by  the  executive,  and  the  other  by  the 
judicial,  department.  We  therefore  conclude  that  a  statute 
which,  in  terras,  authorizes  courts  of  criminal  jurisdiction  to 
suspend  sentence  in  certain  cases  after  conviction — a  power  in- 
herent in  such  courts  at  common  law,  which  was  understood 
when  the  constitution  was  adopted  to  be  an  ordinary  judicial 
function,  and  which,  ever  since  its  adoption,  has  been  exercised 
by  the  courts — is  a  valid  exercise  of  legislative  power  under  the 
constitution.     It  does  not  encroach,  in  any  just  sense,  upon 


I 


44:1 


AMERICAN  CRIMINAL  REPORTS. 


the  powers  of  the  executive,  as  they  have  been  understood  and 
]>racticed  from  the  earliest  times.  The  power  to  suspend  the 
judgment  during  good  behavior,  if  understood  as  expressint,'-  a 
condition  upon  the  compliance  with  which  the  offender  would 
be  absolutely  relieved  from  all  punishment,  and  freed  from  the 
power  of  the  court  to  pass  sentence,  is  open  to.  more  doubt. 
The  legislature  can  not  authorize  the  courts  to  abdicate  their 
own  powers  and  duties,  or  to  tie  their  own  hands  in  such  a  way 
that,  after  sentence  has  been  suspended,  they  can  not,  whe;i 
deemed  proper  and  in  the  interest  of  justice,  inflict  the  proper 
punishment  in  the  exercise  of  a  sound  discretion.  Nor  can 
the  free  and  untrammeled  exercise  of  this  power,  or  the  right 
to  pass  sentence  according  to  the  discretion  of  the  court,  be 
made  dependent  upon  compliance  with  some  condition  that 
would  require  the  court  to  try  a  question  of  fact  before  it 
could  render  the  judgment  which  the  law  prescribes.  The 
statute  must  not  be  understood  as  conferring  any  new  power. 
The  court  may  suspend  sentence  as  before,  but  it  can  do  noth- 
ing to  preclude  itself  or  its  successor  from  passing  tiie  proper 
sentence  whenever  such  a  course  appears  to  be  proper.  This, 
we  think,  is  all  that  the  statute  intends,  and  that  was  the  only 
effect  of  the  judgment.  It  is  a  power  which  the  court  should 
possess  in  furtherance  of  justice,  to  be  used  wisely  and  dis- 
creetly; and  it  is  perhaps  creditable  to  the  administration  of 
justice  in  such  cases  that,  while  the  power  has  always  existed, 
no  complaint  has  been  heard  of  its  abuse.  The  order  of  the 
general  and  special  terms  should  be  reversed,  and  the  mancla- 
mua  denied.    All  concur.    Order  reversed. 


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GoKDON  V.  State. 

(93  Ga.  531.) 
Bape:  Capadty  to  commit— PreatimptioriB. 

1.  Presumptively,  a  boy  under  the  age  of  fourteen  years  is  physically  inca- 

pable of  committing  the  crime  of  rape,  and  hence  it  is  incumbent  upon 
the  state  to  prove  his  capacity,  in  order  to  warrant  a  conviction  for  the 
offense  of  assault  with  intent  to  commit  a  rape. 

2.  Upon  the  trial  of  a  boy  between  the  ages  of  ten  and  fourteen  yeare  for 

any  offense  it  is  not  error  to  give  in  charge  to  the  jury  section  4294  of 
the  Code.    That  section  relates  alone  to  mental  capacity. 


xl  and 
1(1  the 

Would 
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doubt 


GORDON  V.  STATE. 


445 


Error  from  Superior  Court,  Floyd  County;  "W.  M.  Henry, 
Judge. 

Dick  Gordon  was  convicted  of  assault  with  intent  to  rape, 
and  brings  error.    Eeversed. 

Oeo.  A.  II.  Harris,  for  plaintiff  in  error. 

W.  J.  Ifunnally,  Solicitor  General,  for  defendant  in  error. 

Simmons,  J.  By  the  common  law  of  England,  a  boy  under 
fourteen  years  of  age  can  not  be  convicted  of  rape.  In  Hale's 
Pleas  of  the  Crown  it  is  sa  d  that  an  infant  under  that  asre 
'■  is  presumed  in  law  to  be  unable  to  commit  a  rape,  and  there- 
fore, it  seems,  can  not  be  guilty  of  it ;  and  though,  in  other 
felonies,  malitia  supplet  aeuitem,  in  some  cases,  *  *  *  yet 
it  seems,  as  to  this  fact,  the  law  presumes  him  impotent,  as 
well  as  wanting  in  discretion."  Volume  1,  p.  629.  This  pre- 
sumption of  physical  incapacity  is  based  upon  the  fact  that  in 
England  puberty  is  very  seldom  attained,  among  males,  under 
that  age.  The  age  of  puberty,  however,  is  governed  to  a 
great  extent  by  race  and  climate,  and  it  is  well  known  that  in 
this  country,  and  especially  in  the  southern  part  of  it,  instances 
of  puberty  among  boys  under  fourteen  years  of  age  are  no^ 
uncommon.  If  the  common-law  rule  on  this  subject  were  ad- 
hered to  in  this  state  to  the  extent  of  treating  the  presumption 
as  conclusive,  it  would  afford  immunity  to  a  large  number  of 
persons  capable  of  committing  rape,  or  who  have  actually 
committed  it,  and  thus  in  many  instances  defeat  the  ends  of 
justice.  The  common  law  was  adopted  in  this  state  so  far 
only  as  applicable  to  the  conditions  existing  here  (see  Txirner 
V.  Thompson,  58  Ga.  271),  and,  there  being  no  statute  of  Geor- 
gia establishing  any  presumption  of  this  kind,  the  rule  in 
question,  in  so  far  as  it  treats  the  presumption  as  conclusive, 
can  not  be  regarded  as  a  part  of  the  law  of  this  state.  The 
rule  has  to  this  extent  been  held  inapplicable  in  other  states. 
People  V.  Randolph,  2  Park.  Cr.  R.  174;  Ilellman  v.  Com,.,  84 
Ky.  457 ;  Williams  v.  State,  14  Ohio,  222 ;  Wagoner  v.  State,  5 
Lea,  352;  and  see  McKinny  v.  State,  29  Fla.  565.  In  none  of 
the  states,  however,  except  Louisiana,  so  far  as  we  have  been 
able  to  ascertain,  has  it  been  held  that  there  is  no  presumption 
at  all  as  to  the  incapacity  of  boys  under  that  age;  and  the  rea- 
son assigned  for  so  holding  in  Louisiana  is  that  in  that  state  "  a 


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AMERICAN  CRIMINAL  REPORTS. 


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large  majority  of  youths  attain  puberty  before  the  a<re  of  four- 
teen years."  State  v.  Jones,  39  La.  Ann.  935.  It  can  not  be  said 
that  this  is  so  in  Georgia;  on  the  contrary,  it  is  quite  probable 
that  a  large  majority  of  youths  in  this  state  do  not  attain 
puberty  until  after  that  age.  We  think  the  proper  rule,  as 
applicable  to  the  conditions  existing  in  this  state,  is  that  an- 
nounced by  the  courts  of  other  states  in  the  decisions  above 
referred  to,  namely,  that  there  is  a  presumption  of  physical  in- 
capacity as  to  all  boys  under  the  age  of  fourteen;  but  that 
this  is  merely  a  prima  facie  presumption,  subject  to  be  re- 
butted by  proof.  Thus  modified,  we  think  the  presumption  is 
just  and  reasonable;  certainly  not  less  so  than  the  presumption 
recognized  by  our  law  as  to  the  mental  incapacity  of  boys  un- 
der that  age.  There  has  been  some  question  as  to  whether 
this  rule  applies  also  to  assault  with  intent  to  rape,  but  we 
think  the  better  opinion  is  that  it  applies  to  both  oflFenses. 
See  discussion  of  this  question  in  People  v.  Randolph,  2  Park. 
Cr.  R.  213.  See  also,  Rex  v.  Groomhridge,  7  Car.  &  P.  562; 
Rix  V.  Elder shaio,  3  Car.  &  P.  396;  Reg.  v.  Phillips,  8  Car.  & 
P.  736;  Williams  v.  State,  14  Ohio,  222;  1  Bish.  Cr.  Law  (El 
1892)  §  746(2).  The  evidence  in  this  case  being  uncontradicted 
that  the  accused  was  under  fourteen  years  of  age  at  the  time 
the  offense  was  alleged  to  have  been  committed,  we  think  the 
court  ought  to  have  given  in  charge  the  instruction  requested 
on  this  subject,  as  set  out  in  the  fourth  ground  of  the  motion 
for  a  new  trial.  There  being  no  proc  ^f  actual  capacity,  and 
there  being  room  for  doubt,  under  the  evidence,  as  to  whether 
the  accused  intended  or  was  attempting  to  commit  rape,  this 
error  requires  a  reversal  of  the  judgment  denying  a  new  trial. 
Upon  the  trial  of  a  boy  between  the  ages  of  ten  and  four- 
teen years  for  any  offense  it  is  not  error  to  give  in  charge 
to  the  jury  section  4294  of  the  Code.  That  section  relates 
alonr  to  mental  capacity.    Judgment  reversed. 

Note. — What  constitutes. — In  Beck's  Medical  Jurisprudence  (Voiume  1, 
p.  234)  we  find  this  language:  "  Rape  is  the  carnal  knowledge  of  a  female 
forcibly  and  against  her  will.  It  has  been  a  subject  of  legal  discussion  a 
to  what  constitutes  this  carnal  knowledge.  Some  judges  have  supposed  that 
penetration  alone  was  sutiicient,  while  others  have  contended  that  penetra- 
tion and  emission  are  both  necessary."  But  on  page  226  of  the  same  book 
Mr.  Chitty  observes:  "  It  is  certain  that  no  direct  evidence  need  l>e  given 
to  the  emission,  but  that  will  be  presumed  on  proof  of  penetration,  until 


GORDON  V.  STATE. 


447 


rebutted  by  the  prisoner;  and  it  will  suffice  '-o  prove  the  least  degree  of 
penetration,  so  that  it  is  not  necessary  that  the  marks  of  virginity  should 
be  taken  from  the  sufferer."  Mr.  Wharton,  in  his  work  on  Criminal  Law 
(8th  Ed.,  vol.  ',  §§  554,  555),  says:  "  'A  very  considerable  doubt,'  remarks 
Mr.  East,  '  having  arisen  as  to  what  shall  be  considered  sufficient  evidence 
of  the  actual  commission  of  this  offense — that  is,  in  what  carnal  knowledge 
consists— it  is  necessary  to  enter  into  an  inquiry  which  would  otherwise  be 
oflfensive  to  decency.  Considering  the  nature  of  the  crime,  that  it  is  a 
brutal  and  violent  attack  upon  the  honor  and  chastity  of  the  weaker  sex,  it 
seems  more  natural  and  consonant  to  those  sentiments  of  laudable  indigna- 
tion which  induced  our  ancient  lawgivers  to  rank  this  offense  among  felonies 
if  all  further  inquiry  were  unnecessary  after  satisfactory  proof  of  the 
violence  having  been  peri)etrat«;d  by  actual  penetration  of  the  unhappy 
sufferer's  body.  The  quick  sense  of  honor,  the  pride  of  virtue,  which  na- 
ture, to  render  the  sex  amiable,  hath  implanted  in  the  female  heart,  as  Mr. 
Justice  Foster  has  expressed  himself,  is  already  violated  past  redemption, 
and  the  injurious  consequences  to  society  are  in  every  respect  complete. 
Upon  what  principle,  and  for  what  rational  purpose,  any  further  investi- 
gation came  to  be  supposed  necessary,  the  books  which  record  the  dicta  to 
tiiat  effect  do  not  furnish  a  trace.'  The  doubts,  however,  that  existed  in 
England,  h./.e  been  put  to  rest  by  9  Geo.  IV.  c.  81,  making  the  least  pene- 
tration enough  ;  and  in  this  country  the  proof  of  emission  seems  never  to 
have  been  required.  In  several  instances,  in  fact,  it  has  been  held  that  as 
the  essence  of  the  crime  is  the  violence  done  to  the  person  and  feelings  of 
the  woman,  which  is  completed  by  penetration  without  emission,  it  will  be 
sufficient  to  prove  penetration.  »  •  »  But,  while  the  slightest  penetra- 
tion is  sufficient,  there  must  be  specific  proof  of  some,  though  the  proof  of 
this  may  be  inferred  from  circumstances  aside  from  the  statement  of  the 
party  injured.  It  must  be  shown,  to  adopt  the  phraseology  of  Tindal,  C.  J. , 
and  afterwards  of  Williams,  J.,  that  the  private  parts  of  the  male  entered, 
at  least  to  some  extent,  in  those  of  the  female.  At  one  time  it  was  even 
thought  that  there  must  be  proof  that  the  hymen  was  ruptured,  though  this 
is  no  longer  necessary.  The  law  may  now  indeed  be  considered  as  settled 
that,  while  the  rupturing  of  the  hymen  is  not  indispensable  to  a  conviction, 
there  must  be  proof  of  some  degree  of  entrance  of  the  male  organ  '  within 
the  labia  of  the  pudendum';  and  the  practice  seems  to  be,  to  judge  from 
cases  just  cited,  not  to  permit  a  conviction  in  those  cases  in  which  it  is 
alleged  violence  was  done,  without  medical  proof  of  the  fact,  whenever 
such  proof  is  attainable.  It  seems  but  right,  both  in  order  to  rectify  mis- 
takes and  to  supply  the  information  necessary  to  convict,  that  the  prosecu- 
trix should  be  advised  of  this  at  the  outset,  so  that  she  can  take  the 
necessary  steps  to  sticure  such  examination  in  due  time.  If  this  test  is 
generally  insisted  upon,  there  is  no  danger  of  any  conviction  failing  because 
of  noncompliance  with  it;  and,  on  the  other  hand,  many  mistaken  prose- 
cutions will  be  stopped  at  the  outset."  In  the  case  of  Brauer  v.  State, 
reported  in  25  Wis.  418,  the  little  girl  was  but  eight  yeare  of  age,  the  de- 
fendant being  discovered  in  supposed  criminal  connection  with  her,  but 
the  child  did  not  testify  as  a  witness.  It  appeared  from  the  evidence  of  the 
surgeon  that  the  parts  were  very  much  inflamed,  but  the  hymen  was  not 
ruptured  nor  the  vagina  enlarged.    The  court  says :    "  It  will  be  seen  from 


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448 


AMERICAN  CRIMINAL  REPORTS. 


this  statement  of  the  testimony  that  the  objection  to  the  proof  is  thnt  it  wns 
not  direct  and  positive  to  tlie  fact  of  penetration.  It  is  conceded  tlint 
any — the  slightest— penetration  will  suffice  to  constitute  the  offense,  und 
that  rupturing  the  hymen  is  not  indispensable  to  a  conviction.  But  it  in 
insisted  that  penetration  to  some  extent  must  be  positively  proven,  and  thi.t 
it  can  not  be  found  by  the  jury  from  circumstances.  Where  the  offciisL'  is 
committed  upon  a  child  of  tender  years,  and  who,  from  want  of  knowlcdno 
and  inexperience,  may  be  incapable  of  giving  testimony,  it  often  hnpixiis 
that  direct  and  positive  proof  of  jienetration  can  not  be  made,  and,  if  pnjof 
by  circumstances  were  excluded  or  held  insufficient,  the  offender  must  ko 
unpunished  ;  and,  in  such  cases,  the  utmost  reliance  is  placed  on  the  testi- 
mony of  medical  witnesses.  The  marks  of  violence  left  after  such  an 
attempt  upon  a  child,  the  inflamed,  swollen,  and  unnatural  condition  of  tlie 
parts,  together  with  the  pains  and  soreness  complained  of,  are  considered 
quite  as  sure  indications  of  what  has  been  done  as  if  the  child  herself  were 
able  to  testify,  and  even  more  sure  than  her  positive  statement  would  be, 
unsustaincd  by  such  corroborating  facts  and  circumstances."  And  in  the 
case  of  Beg.  v.  Lines,  reported  in  47  E.  C.  L.  898,  on  an  indictment  for 
carnally  knowing  and  abusing  a  child  under  the  age  of  ten  years,  it  appean  d 
from  the  cross-examination  of  the  surgeon  with  respect  to  the  penetration 
that  the  hymen  of  the  child  was  not  ruptured,  but  that  upon  the  hymen 
there  was  a  venereal  sore,  which  must  have  arisen  from  actual  contact 
with  tlie  virile  member  of  the  man.  Counsel  for  the  prisoner  admitted  that 
all  these  appearances  were  consistent  with  the  fact  of  the  private  parts  of 
the  prisoner  being  in  actual  contact  with  the  private  parts  of  the  child,  and 
yet  no  penetration  sufficient  to  constitute  the  whole  offense  may  have  taken 
place.  The  court  said :  "  I  shall  leave  it  to  the  jury  to  say  whether,  at 
any  time,  any  part  of  the  virile  member  of  the  prisoner  was  within  the 
'  labia  of  the  pudendum '  of  the  prosecutrix  ;  for  if  ever  it  was,  no  matter 
how  little,  that  will  be  sufficient  to  constitute  a  penetration,  and  the  jury 
ought  to  convict  the  prisoner  of  the  complete  offense." 

See,  also  Genario  Serio  v.  State,  22  Tex.  App.  033;  State  v.  Johnson,  91 
Mo.  489;  Queen  v.  Dee,  14  L.  R.  Jr.  468;  Queen  v.  Flattery,  2  B.  D.  410; 
Reg.  V.  Young,  14  Cox  Cr.  Cas.  114;  Williams  v.  State,  5  Am.  Cr.  Rep.  612; 
People  V.  Cmwley,  102  N.  Y.  234;  note,  7  Am.  Cr.  Rep.  583-585. 

Ansault  with  intent  to  commit. — In  order  to  sustain  a  conviction  for  an 
assault  with  intent  to  commit  rape,  it  must  be  shown,  beyond  a  reasonable 
doubt,  that  the  accused,  when  he  took  hold  of  the  prosecutrix,  not  only 
desired  to  gratify  his  passions  upon  her  person,  but  that  he  intended  to  do 
so  at  all  events,  and  notwithstanding  any  resistance  on  her  part;  other- 
wise the  defendant  is  only  guilty  of  assault.  Porter  v.  State  (Tex.  Cr. 
App.),  26  S.  W.  626. 

For  discussion  of  the  question  see  Rex  v.  Lloyd,  7  Car.  &  P.  818;  Rex  v. 
Wright,  4  Fost.  &  F.  967;  Com.  v.  Merrill,  14  Gray  415;  Reynolds  v.  People, 
41  How.  Pr.  179;  Joise  v.  State,  53  Ga.  50;  State  v.  Burgdorf,  53  Mo.  65; 
Mahoney  v.  People,  43  Mich.  89;  4  N.  W.  546;  State  v.  Hagerman,  47  Iowa 
151;  Taylor  v.  State,  50  Ga.  79;  Brown  v.  State,  27  Tex.  App.  330;  8  Am. 
Cr.  Rep.  677;  Shields,  v.  State,  82  Tex.  Cr.  R.  498. 

A  husband  who  constrains  another  through  fear  to  attempt  to  ravish  his 
wife  is  himself  guilty  of  an  assault  with  intent  to  commit  rape.  State  v, 
Dowell,  106  N.  C.  722;  8  Am.  Cr.  C81.    A  husband  is  also  guilty  of  rape  upon 


tlint  it  wnR 
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But  it  is 
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ihnson,  91 

3.  D.  410; 

Rep.  612; 

ion  for  an 
easonable 
I  not  only 
led  to  do 
rt;  other- 
Tex.  Cr. 

i;  Sex  v. 
\  People, 
i  Mo.  65; 
47  Iowa 
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ivish  his 
State  V. 
peupon 


SNOWDEN  V.  UNITED  STATES. 


449 


his  wife  if  he  aids  another  in  the  commission  of  the  offense.  People  v. 
Chapman,  7  Am.  Cr.  R.  568.  So  by  aiding  another  in  the  commission  of 
the  crime  against  another  woman,  a  woman  may  be  guilty.  State  v.  Jones, 
83  N.  C.  605. 

A  verdict  of  guilty  of  an  assault  with  intent  to  commit  rape  will  be 
sustained  under  an  information  charging  the  crime  of  rape,  since  the  lesser 
crime  is  necessarily  included  within  the  greater.  State  v.  Mueller  (Wis.). 
55  N.  W.  165;  State  v.  Bagan,  41  Minn.  285;  Com.  v.  Cooper,  15  Mass.  187; 
Com.  V.  Drum,  19  Pick.  479;  Com  v.  Dean,  109  Mass.  849;  State  v.  Cross,  12 
Iowa  66;  State  v.  Atherton,  50  Iowa  189;  Richardson  v.  State,  54  Ala.  158. 

Asmu't  with  intent  to  rape  female  under  age  of  consent. — Havingsexual 
intercourse  with  a  girl  under  the  age  of  consent,  constitutes  assault  with  in- 
tent to  commit  rape,  although  she  may  have  actually  consented  and  sub- 
mitted without  resistance  to  the  advances  of  the  accused.  It  is,  however, 
a  presumption  of  law  that  a  girl  under  tfen  years  of  age  is  incapable  of  con- 
senting to  the  offense  of  rape;  and  as  such  an  offense  includes  an  attempt 
to  commit  it,  accompanied  by  such  force  and  violence  upon  the  person  as 
constitutes  an  assault,  a  girl  under  the  age  of  consent  is  incapable  in  law  of 
consenting  to  the  assault  in  connection  with  the  attempt  to  commit  the 
offense.  Whether  the  girl  in  fact  consented  or  resisted  is  therefore  imma- 
terial. Being  incapable  of  consenting  to  an  act  of  carnal  intercourse,  it  is 
criminal  for  a  man  to  make  an  assault  upon  her  to  commit  such  an  act. 
People  V.  Gordon,  70Cal.  467;  Davis  v.  State,dl^eh.  247;  State y.Frazier, 
(Kan.)  39  Pac.  819. 

Consent  given  after  assault. — Reynolds  v.  Sfa^e,  27Neb.  90;  8  Am.  Cr.  R. 
664. 

Nature  of  ojcnac. —Note,  8  Am.  Cr.  Rep.  667,  668. 


Snowden  V.  United  States. 

(2App.  D.  C.  89.) 

Rape:   Res  gestae— Evidence, 

1.  In  criminal  cases,  and  especially  in  cases  of  rape,  and  in  cases  of  abuse  of 

female  children,  the  principle  of  what  is  called  the  res  gestae  will  of 
necessity  be  extended  beyond  the  limits  that  obtain  generally  in  civil 
cases. 

2.  In  a  prosecution  of  a  defendant  for  the  rape  of  a  child  about  five  years  and 

a  half  old,  the  statements  of  the  child,  of  the  particulars  of  the  outrage, 
made  to  her  grandmother  at  a  time,  during  the  same  day,  when  the  con- 
dition of  the  child  showed  that  the  outrage  had  been  recently  commit- 
ted, and  testified  to  by  the  grandmother,  are  admissible  as  part  of  the 
res  gestae. 

Hearing  on  an  appeal  by  the  defendant  from  a  judgment 
of  the  Supreme  Court  of  the  District  of  Columbia,  holding  a 


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I    ;•   :',i 


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450 


AMERICAN  CRIMINAL  REPORTS. 


criminal  term  upon  a  verdict  of  guilty  in  a  prosecution  for 
rape.    Atfirmed. 

Thomas  L.  Jones,  for  the  appellant. 

A.  A.  Birney,  United  States  Attorney,  for  the  United  States. 

Mb.  Chikf  Justice  Alvey  delivered  the  opinion  of  the 
Court. 

The  exception  taken  was  only  to  the  admissibilit}'  of  tlio 
statements  of  the  child  made  to  the  grandmother,  and  by  the 
latter  repeated  to  the  jury  as  primary  and  indejiendent  evi- 
dence. There  was  no  exception  taken  to  the  admission  in  evi- 
dence of  the  statements  of  the  child,  which  were  repeated  by 
the  grandmother  to  the  accused  shortly  after  the  occurrence, 
and  which  elicited  the  reply  that  "  You  did  not  see  it;  ycm 
have  got  to  prove  it."  These  declarations,  both  of  the  child 
and  of  the  accused,  were  admitted  together;  the  declarations 
of  the  one  to  be  considered  in  connection  Avith  the  declara- 
tions or  implied  admissions  of  the  other.  That  they  were 
competent  evidence  there  can  be  no  doubt.  When  reproached 
for  the  commission  of  the  offense,  with  a  statement  to  the  ac- 
cused of  what  the  child  had  said,  if  he  had  been  innocent,  it 
is  but  natural  to  presume  that  he  would  at  once  have  at- 
tempted to  refute  the  charge,  and  vindicate  himself  by  explicit 
denial,  instead  of  the  evasive  and  defiant  answer  given  by 
him. 

But  was  the  statement  of  the  child  made  to  the  grand- 
mother, as  to  the  particulars  of  the  offense,  and  criminating 
the  accused,  admissible  as  evidence  per  se,  as  being  part  of 
what  is  generally  designated  as  res  gestae,  or  as  being  of  the 
nature  of  res  gestae  ?  Upon  careful  consideration  of  the  facts 
of  this  case,  we  are  clearly  of  opinion  that  such  statement  was 
admissible  as  evidence  j^t^r  se. 

The  question  as  to  what  constitutes  res  gestae  has  been  the 
subject  of  a  great  diversity  of  decision.  Indeed,  the  phrase 
itself,  as  said  by  Mr.  Justice  Stephen  in  his  Digest  of  Evidence 
(Am.  Ed.)  250,  seems  to  have  come  into  use  on  account  of  its 
convenient  obscurity.  In  criminal  cases,  and  especially  in 
cases  of  rape,  and  in  cases  of  abuse  of  female  children,  the 
principle  of  what  is  called  the  res  gestae  has  been  (from  neces- 
sity of  the  case),  extended  beyond  the  limits  that  obtain  gener- 


Jution  for 


[ed  States. 

fn  of  tlie 

ty  of  the 
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proacbed 
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he  facts 
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vidence 
t  of  its 
ally  in 
en,  the 

neces- 
gener- 


SNOWDEN  V.  UNITED  STATES. 


151 


ally  in  civil  cases.  This  difference  in  the  application  of  the 
])riMciple  is  recognized  by  this  court  in  the  recent  case  of  Ji. 
R.  Co.  V.  Collins,  1  A  pp.  D.  C.  3S3. 

Indeed,  as  has  been  well  asserted,  no  inflexible  rule  as  to  the 
len;^th  of  interval  between  the  act  charged  against  the  accused 
and  the  declaration  of  the  complaining  party,  can  be  laid  down 
as  established.  In  .all  such  cases,  the  particular  facts  of  each 
case  must  stand  alone  and  speak  for  themselves,  as  evidential 
means  of  proof  of  the  crime  charged.  The  general  rule  ob- 
served in  the  trial  of  cases  of  rape  or  attempts  to  commit  that 
offense,  has  been,  no  doubt,  to  inquire  of  the  prosecuting  wit- 
ness whether  she  had  made  complaint  of  the  outrage  upon  her, 
recently,  after  the  occurrence  of  the  crime,  without  requiring 
her  to  state  the  particulars  of  the  offense,  leaving  it  to  the  de- 
fense, on  cross-examination,  to  bring  out  the  particulars  of  the 
complaint,  if  desired.  But  this  is  not  an  invariable  rule.  Mr. 
Justice  Stephen,  in  his  Digest  cf  the  Law  of  Evidence  (Am.  Ed.), 
page  251,  says :  "  I  have  heard  Willes,  J.,  rule  that  such  state- 
ments of  the  particulars  were  admissible  on  several  occasions, 
vouching  Parke,  B.,  as  his  authority."  Jieff.  v.  Walker,  2  M.  & 
R.  212,  a  case  referred  to,  was  decided  by  Parke,  B.,  in  1839, 
and  though  he  excluded  the  statement,  he  said  :  "  The  sense 
of  the  thing  certainly  is,  that  the  jury  should,  in  the  first  in- 
stance, know  the  nature  of  the  complaint  made  by  the  prose- 
cutrix and  all  tiiat  she  then  said.  But  for  reasons  which  I 
never  could  understand,  the  usage  has  obtained  that  the  pros- 
ecutrix's counsel  should  only  inquire  generally  whether  a  com- 
plaint was  made  by  the  prosecutrix  of  the  prisoner's  conduct 
toward  her,  leaving  the  prisoner's  counsel  to  bring  before  the 
jury  the  particulars  of  that  complaint  by  cross-examination." 
*'  Lord  Justice  Bramwell,"  says  the  author,  "  was  in  the  habit, 
during  the  latter  part  of  his  judicial  career,  of  admitting  the 
complaint  itself.  The  practice  is  certainly  in  accordance  with 
common  sense."  And  in  verification  of  this  statenient  of  Mr. 
Justice  Stephen,  himself  a  high  authority  upon  this  subject, 
we  have  the  caee  of  Beg.  v.  Wood,  14  Cox  Cr.  Cas.  46,  tried  be- 
fore Lord  Justice  Bramwell  in  1877.  In  that  case,  the  pris- 
oner, Wood,  was  charged  with  committing  a  rape  upon  a  fe- 
male, and  the  statement  of  the  full  particulars  of  the  complaint 
she  made  against  him,  to  other  persons  in  his  absence,  some 


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I'll   J 


M   I,   1  ^ 


time  after  the  alleged  offense,  was  allowed  to  bo  given  in  evi- 
dence against  the  accused. 

It  is  true,  in  that  case,  the  female  was  examined,  and  tosti- 
fied  to  the  facts  of  the  transaction;  but  the  Lord  Justice  said 
he  did  not  see  why  the  whole  statement  made  by  the  girl  re- 
cently after  the  occurrence  should  not  be  given  in  evidence, 
leaving  it  to  the  jury  to  judge  of  tsie  value  of  such  testimony. 
See,  also,  I?eff.  v.  Ey/'c,  2  F.  &  F.  57i),  and  lieg.  v.  lieanion,  4 
F.  &  F.  76. 

But,  as  applied  to  other  coses  than  rape,  or  attempts  to  com- 
mit rape,  where  the  declarations  or  statements  of  the  injured 
])arty  are  sought  to  be  introduced,  the  principle  of  the  nx 
ijestae,  as  it  is  called,  would  seem  to  be  sufficiently  comprehen- 
sive to  allow  of  the  admission  of  the  evidence  excepted  to  in 
this  case. 

In  the  case  of  Bex  v.  Fonter^  6  C.  &  P.  325,  before  Mr.  Jus- 
tice Park,  Mr.  Justice  Patterson  and  Mr.  Baron  Gurney,  A 
Avas  charged  with  manslaughter  in  killing  B,  by  driving  a  cal) 
over  him.  C  saw  the  cab  drive  by,  but  did  not  see  the  acci 
dent,  and  immediately  afterward,  on  hearing  B's  groan,  C  went 
up  to  him,  when  B  made  a  statement  as  to  how  the  accident 
had  happened;  and  it  was  held  that  this  statement  was  admis- 
sible as  part  of  the  res  gestae.  Mr.  Justice  Park  said  that  the 
evidence  ought  to  be  received;  that  it  was  the  best  possible 
evidence,  under  the  circumstances,  that  could  be  adduced  to 
show  what  it  was  that  had  knocked  the  deceased  down.  The 
other  judges  concurred. 

In  this  country,  the  decisions  are  not  uniform,  some  apply- 
ing the  principle  with  greater  strictness  than  others. 

But  there  are  many  decisions  of  courts  of  the  highest  au- 
thority, in  which  the  principle  of  the  res  gestae  has  been 
applied  with  the  same,  if  not  greater,  comprehensiveness  as 
applied  in  the  English  courts.  Especially  is  this  so  in  the  ad- 
ministration of  the  criminal  law.  Thus  in  the  case  of  Com, 
-y.  McPike^  3  Cush.  181,  where  the  defendant  was  charged 
with  manslaughter  in  killing  his  wife,  a  witness  was  allowed 
to  testify  that  the  wife,  just  before  her  death,  told  him  that 
the  defendant,  her  husband,  had  stabbed  her;  and  this  state- 
ment of  the  wife  was  made  to  the  witness  after  a  sufficient  in- 
terval of  time  to  permit  the  deceased,  after  receiving  the  wound, 
to  go  up  stairs  and  dispatch  a  messenger  for  a  doctor,  and  then 


^'en  in  evi- 

and  tosti- 
^stice  said 
fie  girl  ,.,.. 

evidericp, 
pestiiiionv. 

fts  to  coin- 

0  injuiod 

•f  the  /•<* 

wnprehen- 
Jted  to  in 

'  Mr.  Jus- 
urney,  A 

Jng  a  cal) 

tlie  acci 
1,  C  went 

accident 
as  adniis- 
l  that  the 

possible 
l<luced  to 
vn.    The 


le 


apply- 


hest  an- 
as been 
sness  as 
the  ad- 
of  Com. 
Jliarged 
Jllowed 
im  that 
5  state- 
lent  in- 
vound, 
id  then 


8N0WDEN  V.  UNITED  STATES. 


458 


to  allow  the  witness  to  go  after  a  watchman,  return  to  the 
house  and  go  ui>  stairs  to  the  room  of  the  wounded  woman, 
where  the  declarations  were  made  by  her  criminating  her  hus- 
band. These  declarations  were  chamcterized  by  the  court  as 
being  "  of  the  nature  of  res  gestae^''  and  therefore  admi&siblo 
as  evidence- 
In  the  case  of  ItiB.  Co.  v.  Modey,  8  "Wall;  307,  a  civil  action, 
the  question  of  the  admissibility  of  declarations  or  statements 
of  a  imrty  insured  as  to  the  manner  in  which  he  received  an 
injury,  made  some  time  thereafter,  was  carefully  considered  by 
tlie  bupreme  Court  of  the  United  States;  and  "n  holding  the 
declarations  admissible,  the  court  say,  that  where  the  princi- 
pal fact  is  the  fact  of  bodily  injury,  the  res  gestae  are  the 
statements  of  the  cause,  made  by  the  injured  party  almost 
contemporaneously  with  the  occurrence  of  the  injury,  an«l 
those  relating  to  the  consequences  made  while  the  latter  sub- 
sisted and  were  in  progress. 

In  that  case,  the  cases  of  Rex  v.  Foster,  supra,  and  Com.  v. 
MePlke,  svpra,  are  cited  and  relied  on  as  authorities.  The 
court  declares,  moreover,  that  the  tendency  of  recent  adjudi- 
cations is  to  extend  rather  than  to  narrow  the  scope  of  the 
doctrine;  and  that  rightly  guarded  in  its  practical  application, 
there  is  no  principle  in  the  law  of  evidence  more  safe  in  its 
results. 

In  the  case  of  People  v.  Brown,  53  Mich.  531,  the  question 
arose  in  the  case  of  a  party  indicted  for  rape.  The  statements 
or  answers  made  by  the  girl,  two  or  three  days  after  the  com- 
mission of  the  allege<l  crime,  were  held  to  be  admissible.  In 
the  opinion  of  the  court,  such  statements  were,  to  a  certain 
extent,  to  be  regarded  as  parts  of  the  res  gestae,  which,  in  rape 
cases,  include  such  accounts  of  the  recent  crime  as  might  rea- 
sonably be  expected  from  the  injured  female.  And  that  case 
is  supported  by  reason  and  authority. 

In  the  case  before  us  the  crime,  as  usual,  was  perpetrated  in 
secret;  and,  as  in  all  such  cases,  is  most  difficult  to  prove  ex- 
cept by  thf  testimony  of  the  victim  of  the  outrage.  Of  the 
fact  that  the  chUd  had  been  outrageously  abused,  there  can  be 
no  doubt;  and  from  the  indications  about  her  person,  and  other 
circumstances  stated  in  the  bill  of  exceptions,  the  conclusion 
is  natural  and  reasonable  that,  at  the  time  her  condition  Avas 
tirst  discovered  by  her  grandmother,  the  outrage  had  been  but 


i 


iiji  i 


■:'■:':     ;'* ;     « 


i 


454 


AMERICAN  CRIMINAL  REPORTS. 


recently  committed.  On  the  return  of  the  grandmother  the 
child  was  found  lying  on  the  floor,  crying. 

Sliewas  then  suffering  from  the  injuries  inflicted  on  her  per- 
son, and  it  was  then  and  there  that  she  made  the  statement  of 
the  particulars  of  the  outrage  upon  her,  in  which  the  appel- 
lant was  charged  as  being  the  perpetrator  of  the  wrong.  In 
our  opinion  the  statement  of  the  child  made  to  the  grand- 
mother, under  the  circumstances,  was  part  of  the  res  gentae, 
and  was  properly  admitted  in  evidence. 

It  follows  that  the  judgment  must  be  affirmed. 

Judgment  affirmed  and  cause  remanded  that  judgment  be 
executed. 

Note. — Exclamafiona  of  bystanders  on  the  spot  wher«  a  murder  was 
committed,  that  defendant  ought  to  be  hung,  are  hearso"  and  inadmissible 
in  evidence.    Koelin  v.  Com.,  7  Am.  Cr.  R.  452. 

Declarations  of  accused  on  his  return  to  his  home,  as  to  where  he  liad 
been,  inadmissible  as  part  of  the  res  gesta.  State  v.  McCracken,  6  Am.  Cr. 
R.  309.    So  of  declarations  of  a  past  transaction.    Id. 

All  matters  in  evidence  constituting  the  res  gesta,  whether  introduced  by 
the  state  or  by  tlie  defense,  should  be  laid  before  the  jury.  Kent  v.  People, 
5  Am.  Cr.  R.  406. 

Circumstances  and  declarations  which  were  contemporaneous  with  the 
main  fact  under  consideration,  or  so  nearly  related  to  it  as  to  illustrat,e  its 
character  and  the  state  of  mind  or  character  or  dispositions  of  the  actors, 
are  parts  of  the  »*es  gesta.    Varr  v.  State,  5  Am.  Cr.  438. 

In  Steamboat  Co.  v.  Brockett,  121  U.  S.  637,  the  United  States  Supreme 
Court,  on  p.  449,  hold  that  declai'ations  made  by  one  servant  while  assisting 
another  servant  in  enforcing  regulations  of  their  employer,  are  a  part  of 
the  res  gestae,  as  accompanying  and  explaining  tlie  acts  of  tlie  defendant's 
servants,  out  of  which  directly  arose  the  injuries  inflicted  upon  the  plaint- 
iflE,  citing  Toledo  dt  Wahash  Ry.  v.  Goddard,  25  Ind.  185-191. 

As  to  what  constitutes  res  gestae,  see  Vicksburg  &  Meridian  R.  R.  v, 
O'Brien,  119  U.  S.  99. 

On  a  trial  for  robbery,  evidence  of  declarations  of  the  complaining  wit- 
ness, as  to  the  fact  that  defendant  had  robbed  him,  made  several  blocks  from 
where  it  is  alleged  to  have  occurred,  and  in  tlie  absence  of  defendant,  is 
inadmissible  as  res  gestae.    Shoecraft  v.  State,  (Ind.  Sup.)  36  N.  E.  1113. 

As  to  what  is  part  of  the  res  gestae,  in  proving  marriage.  State  v.  Behr- 
man  (N.  C),  19  S.  E.  226;  in  action  for  assault  and  battery.  Pool  v.  State, 
Tex.  Cr.  App.,  23  S.  W.  891;  in  assault.  Hormv.  State,  102  Ala.  144;  in  rob- 
bery, Davis  V.  State  (Tex.  Cr.  App.),  26  S.  W.  084. 


lotlier  tlie 

an  her  per- 
itement  of 
the  appol- 
rong.  In 
he  grand- 
fes  geatiw, 


gment  be 


nurder  wns 
nadmissible 

lere  he  liad 
,  6  Am.  Cr. 

reduced  by 
t  V.  People, 

is  with  the 

llustrat,e  its 

the  actors, 

s  Supreme 
le  assisting 
e  a  part  of 
lefendant's 
tlie  plaint- 

'»  if.  R.  V. 

ining  wit- 
locks  from 
endant,  is 
3.  1113. 
e  V.  Belir- 
V.  State, 
4;  in  rob- 


BAKER  V.  STATE.  455 


Baker   v.  State. 

(58  Ark.  513.) 

Receivino   Stolkm   Good3:   Felonioim   intent— Proof  of   venue~-Cro8s- 

examination  of  accused. 

1.  An  accused  may  be  a.sked  on  cross-examination  if  he  had  not  been  con- 

fined in  the  penitentiary. 

2.  One  who  obtains  possession  of  the  watch  of  another,  knowing  it  to  be 

stolen,  and  conceals  his  possession  with  the  intention  of  requiring  the 
other  to  pay  a  reward  for  restoration,  may  be  convicted  under  a  statute 
providing  a  penalty  for  receiving  stolen  goods,  knowing  them  to  be 
stolen,  with  intent  to  deprive  the  owner  thereof. 

3.  The  venue  of  an  indictment  laid  in  P.  county  for  receiving  a  watch, 

knowing  it  to  be  stolen,  is  sufficiently  proven  by  evidence  that 
accused  obtained  possession  of  the  watch  in  M.  county,  came  to  P. 
county  with  it,  and  there  exacted  a  reward  from  the  owner  for  its 
restoration. 

Appeal  from  Circuit  Court,  Phillips  County;  Grant  Green, 
Jr.,  Judge. 

Gilbert  Baker  was  convicted  of  receivin^j-  stolen  goods,  and 
appeals.     Affirmed. 

The  defemlant  filed  the  following  motion  to  set  aside  the 
indictment :  "  The  defendant  moves  the  court  to  set  aside  the 
indictment  herein  against  him,  because :  (1)  The  said  indict- 
ment was  not  found  or  presented  by  sixteen  good  and  lawful, 
fair  and  impartial  jurors.  (2)  E.  S.  Ready,  the  injured  party, 
named  in  the  indictment  herein,  was  a  grand  juror  and  mem- 
bar  of  the  grand  jury  )>y  whom  said  indictment  Avas  preferred, 
and  had  prejudiced  the  charge  therein  against  the  defendant. 
(a)  The  said  E.  S.  Heady,  the  prosecutor  in  the  case,  was  the 
only  witness  examined  by  the  grand  jury,  of  which  he  was 
then  a  member,  concerning  the  commission  of  the  crime  alleged 
in  said  indictment.  (4)  The  said  defendant  was  not  held  to 
answer  said  criminal  charge,  or  any  other  public  offense,  before 
said  grand  jury,  and  had  no  opportunity  to  object  to  the  com- 
petency of  said  E.  S.  Ready  as  a  member  of  said  grand  jurj' 
before  he  was  sworn.  (5)  That  the  prosecuting  attorney  was 
present  while  tne  grand  jury  was  deliberating  on  the  charge 
contained  in  said  indictment.    (6)  The  proceedings  of  said  jury 


i      1 

1;, 

;    ■        ■      ■ 

■  2''    '_.■'■    :■^ 

■1 

s 

^^H^ 

■f 

Hi 

1 

4  .."^ ''  1 


460 


AMERICAN  CRIMINAL  REPORTS. 


in  finding  said  indictment  were  otherwise  irregular  and  con- 
trary to  law." 

Sanders  tfe  Fink,  for  appellant. 

James  P.  CVarX;,  Attorney-General,  and  Chas.  T.  Coleman,  iov 
the  appellee. 

Hughes,  J.  The  demurrer  of  the  appellee  for  the  second, 
third  and  fourth  grounds  of  appellant's  motion  to  quash  the 
indictment  was  properly  sustained.  There  was  no  evidence  to 
sustain  the  first  and  fifth  grounds  of  the  motion.  The  sixth 
ground  was  merely  formal.  Section  2098,  Mansf.  Dig.,  which 
provides, "  Every  person  held  to  answer  a  criminal  charge  may 
object  tc  the  com])etency  of  any  one  summoned  to  serve  as  a 
grand  juror,  before  he  is  sworn,  on  the  ground  that  he  is  the 
prosecutor  or  complainant  upon  any  charge  against  such  per- 
son, or  that  he  is  a  Avitness  on  the  part  of  the  prosecution," 
"  applies  only  to  persons  held  to  answer  criminal  charges, 
Avhich  have  not  been  previously  investigated  and  acted  upon  by 
a  grand  jury,  and  not  to  a  person  already  indicted."  Ifii<fspeth 
V.  State,  50  Ark.  534.  The  appellant's  motion  for  a  continu- 
ance that  he  might  procu;'e  the  testimony  of  Cora  Dixon  was 
properly  denied,  as  the  appellee  admitted  that  what  the  motion 
stated  she  would  testify  to  was  true,  which  related  only  to  the 
question  of  guilt  upon  the  first  count  of  the  indictment,  upon 
which  appellee  was  acquitted.  He  was  not  prejudiced  by 
the  refusal  of  the  court  to  continue  the  cause  for  this  wit- 
ness' testimony.  The  evidence  of  E.  S.  Keady,  tending  to 
show  that  the  appellant  committed  the  burglary  and  larceny, 
after  the  admission  by  the  appellee  that  what  the  motion  for 
continuance  stated  Cora  Dixon  would  swear  was  true,  was,  as 
the  record  shows,  brought  out  on  cross-examination  by  ap))el- 
lant's  counsel,  and  he  can  not  be  heard  to  complain  of  this. 

It  is  urged  that  the  court  erred  in  giving  the  second,  third  and 
fourth  instructions,  which  related  to  the  count  in  the  indict- 
ment for  larceny.  "  Ah  error  in  rejecting  a  prayer  for  an 
instruction  is  not  prejudicial  if  it  appear  that  the  jury  found 
a  state  of  facts  to  which  it  would  have  been  inapplicable." 
Farris  v.  State,  54  Ark.  4.  The  court  told  the  jury  that  the 
facts  stated  as  the  evidence  of  Cora  Dixon  were  admitted  by 
the  state,  and  must  be  taken  as  true.    This  admission   by  the 


nd  con- 


nan^  for 

second, 
ish  tlie 
ence  to 
e  sixtli 
wliich 
^gemay 
ve  as  a 


BAKER  V.  STATE. 


457 


state  was  a  virtual  abandonment  of  the  first  count  of  the 
indictment. 

Tlie  appellant  contends  that  the  first  instruction  for  the 
state  is  erroneous;  because  it  stated  to  the  jury  that  the  state- 
ments of  the  defendant  in  relation  to  his  posses  lon  of  the 
stolen  property  were  all  "  facts  to  be  considered  by  the  jury  in 
arriving  at  their  verdict."  If  there  was  any  error  in  this 
instruction  it  was  cured  bv  the  fourth  instruction  given.  Per- 
haps  it  would  have  been  better  if  the  court  had  stated  in  the 
first  instruction  that  the  statements  of  the  defendant  in  rela- 
tion to  his  possession  of  the  stolen  property  should  be  consid- 
ered by  them  in  arriving  at  a  verdict.  Standing  alone,  we  see 
no  substantial  error  in  it.  The  proof  showed  that  the  prop- 
erty had  been  recently  stolen,  before  it  was  found  in  the  pos- 
session of  the  defendant.  We  think  there  was  no  error  in 
refusing  the  several  instructions  asked  hy  the  appellant. 

It  is  assigned  as  error  that  the  verdict  of  the  jury  was  re- 
turned in  the  absence  of  appellant's  counsel,  and  that  he  was 
not  called.  He  did  not  ask  that  his  counsel  should  be  present. 
He  could  waive  his  presence.  There  was  no  reversible  error 
in  this.  A  defendant  on  trial  for  a  felony  '•  must  be  present 
whenever  any  substantive  step  is  taken  in  his  case,  unless  it 
appear  that  no  prejudice  could  by  any  possibility  result  from 
his  absence."  Mahry  v.  State,  50  Ark.  492;  Beardon  v.  State, 
44  Ark.  331.  "  He  has  no  right  to  abscond,  and  then  to  com- 
plain of  his  own  absence."  Section  2213  Mansf.  Dig.;  Gore  v. 
State,  52  Ark.  285.  It  is  a  constitutional  right  of  a  defendant 
on  trial  for  felony  "  to  be  heard  by  himself  or  counsel."  Sec- 
tion 10,  art.  2,  Constitution  lb74.  If  the  absence  of  defend- 
ant's counsel,  when  a  verdict  is  returned  against  him  in  a 
felony,  would  in  any  case  be  a  ground  for  reversal,  we  think  it 
sufficiently  appears  in  this  case  that  the  appellant  could  not 
have  been  prejudiced  by  the  absence  of  his  counsel  when  the 
verdict  was  returned  into  court. 

The  api)ellant  insists  that  the  venue  was  not  proven  as  laid 
in  the  indictment.  This  is  the  most  difficult  and  troublesome 
question  in  the  case.  There  does  not  seem  to  be  any  evidence 
that  the  appellant  had  the  stolen  watch  in  his  possession  in 
Phillips  county,  wher'i  he  was  indicted  and  tried,  prior  to  the 
time  he  carried  it  back  from  Pine  Bluff  to  Ready,  the  owner, 
in  Helena,  in  said  county.  According  to  Ready's  testimony, 
which  the  jury  might  have  believed,  and  doubtless  did  believe, 


-mm 


%'jn 


wa»m 


i;:-l: 


H 


^^  /,^! 


'  Ul 


'I 


M 


%i 


458 


AMERICAN  CRIMINAL  REPORTS. 


the  appellant  told  him,  when  he  brought  the  watoh  back  to 
Helena  and  reoaivod  the  reward  of  $25,  and  his  expanses,  $7.50, 
that  he  had  r^savered  the  watch  at  Clarendon,  Monroe  county, 
at  the  depot  of  the  Cotton  Belt  Railroad,  on  the  24th  of  Fol). 
ruary,  having  borrowed  from  the  depot  agent  $20,  which  he 
paid  for  information  which  enabled  him  to  recover  it;  that  he 
had  not  then  had  any  description  of  the  watch.     Ready  says 
that  on  the  1st  day  of  March  following,  the  appellant  tele- 
graphed hira  from  Pina  Blutf,  Ark.,  as  follows :  "  Will  try  and 
get  watch  and  man  for  fifty  dollars."     "  That  after  Baker  was 
arrested,  he  told  me  that  he  was  very  much  surprised  at  being 
indicted  for  burglary,  and  for  stealing  my  watch.    That  he 
got  the  watch  in  Pine  Bluff,  with  some  other  things — some 
diamonds,  three  or  four  silver  watches,  and  other  jewelry — 
from  the  thieves;  and  that  he  borrowed  $30,  and  got  a  quart 
of  whisky,  which  he  gave  for  the  jewelry.    I  reminded  him 
that  he  told  me  in  March  that  he  got  the  watch  in  Clarendon. 
He  became  very  much  confused,  and  said  that  I  was  mistaken; 
that  he  told  me  he  got  it  at  Pine  Bluff."     From  this  evidence 
the  jury  might  have  believed  that  the  appellant  received  the 
watch  in  Clarendon  on  the  24th  of  February,  and  concealed 
the  fact  until  after  the  1st  of  March  following,  and  until  after 
he  sent  the  telegram  to  Ready,  on  the  1st  of  March,  seek- 
ing to  have  Ready  offer  a  reward  for  the  watch  before  he  dis- 
closed that  it  was  in  his  possession. 

It  is  contended  b}"^  the  appellant  that  "  the  existence  of  the 
felonious  intent  to  deprive  the  owner  of  the  specific  stolen 
property  received  by  him  must  be  proven;"  that  the  "  fact  that 
appellant  sought  an  advantage  for  himself,  or  to  gain  money 
as  a  condition  of  the  return  of  the  wat-'i,  does  not  constitute 
the  crime  charged."  In  Beg.  v.  O^Donnell,  7  Cox.  Cr.  Ca?. 
337,  it  was  held  that  if  proi)erty  be  taken  with  the  intention 
of  holding  it  until  the  rightful  owner  should  pay  a  certain  sum, 
and  obliging  such  payment,  the  offense  of  larceny  was  com- 
j)lete.  In  Cora.  v.  Mason,  105  Mass.  163,  Morton,  J.,  said  : 
"  We  think  when  a  j)erson  takes  property  of  another  with  the 
intent  to  deprive  the  owner  of  the  property  taken  or  of  its 
value,  such  intent  is  felonious,  and  the  taking  is  larceny."  In 
Bernj  v.  State,  31  Ohio  St.  227,  in  which  the  cases  cited  above 
are  cited,  it  is  said :  '*  In  an  exact  sense  it  is  not  true  that  an 
intent  to  appropriate  permanently  the  property  taken  is  a 


back  to 
|es,  $7.50, 
county, 
of  Feb. 
^vhich  lie 
that  he 
jady  says 
|ant  tele- 
try  and 
liver  was 
at  beint"- 
That  he 
[•s — some 
nvelry — 
t  «i  quart 
decl  hini 
arendon. 
listakon; 
evidence 
ived  the 
oncealed 
itil  after 
Jh,  seek- 
e  he  dis- 

e  of  the 
5  stolen 
'act  that 
money 
nstitute 
-r.  Ca?. 
tention 
in  sum, 
ts  com- 
«  said  : 
ith  the 
'  of  its 
."    In 
above 
hat  an 
Q  is  a 


BAKER  V.  STATE. 


459 


necessary  ingredient  in  the  crime  of  larceny,  if  by  permanent 
appropriation  is  meant  keeping  the  specific  property  from  the 
possession  of  the  owner."  And  in  the  syllabus  of  that  ease  it 
is  laid  down  that  "  the  wrongful  taking  and  carrying  away  of 
the  propert}'  of  another,  without  his  consent,  with  intont  to 
conceal  it,  until  the  owner  offers  a  reward  for  its  return,  and 
for  the  purpose  of  obtaining  the  reward,  is  larceny."  The  im- 
mediate and  unconditional  possession  of  stolen  goods  is  the 
rio'ht  of  the  owner.    /State  v.  Pardee,  37  Ohio  St.  G6. 

The  section  of  the  statute  under  which  the  defendant  in  this 
case  was  convicted  reads  as  follows  :  "  Whoever  shall  receive 
or  buy  any  stolen  goods,  moneys  or  chattels,  knowing  them  to 
be  stolen,  with  intent  to  deprive  the  true  owner  thereof,  shall, 
upon  conviction,  be  punished  as  is  or  may  be  by  law  prescribed 
for  the  larceny  of  such  goods  or  chattels,  in  cases  of  larceny." 
]\[iinsf.  Dig.  §  1631.  In  the  syllabus  of  the  case  of  People  v. 
Wiley,  3  Hill,  194,  it  is  said :  '•  So,  though  the  purpose  be  not 
to  deprive  him  of  the  specific  goods,  but  of  some  other  portion 
of  his  property,  e.  g.,  to  defraud  him  into  the  payment  of 
money  by  way  of  reward  for  the  restoration  of  the  goods." 
Bishop  and  Wharton  have  both  stated  the  rule  substantially 
as  above  stated.  Under  the  authorities  quoted,  if  the  jury  be- 
lieved from  the  evidence  in  this  case — and  they  might  have  so 
believed — that  the  appellant  received  the  stolen  watch  at  Clar- 
endon on  24th  February,  and  concealed  the  fact  from  Eead\', 
the  owner,  knowing  the  property  to  be  Ready's,  with  the  in- 
tention of  defrauding  Ready  into  the  paymgnt  of  money  to 
him  by  way  of  reward  for  the  restoration  of  the  watch,  the 
offense  of  receiving  stolen  property  was  made  out  under  the 
statute.  And  if  the  appellant  returned  to  Phillips  county  with 
the  stolen  watch,  with  a  purpose  to  exact  of  Ready  a  reward 
for  its  return,  and  had  the  watch  in  Phillips  county,  with  the 
intention  of  requiring  Ready,  as  a  condition  of  its  return,  to 
pay  him  money  therefor,  he  was  guilt}',  under  the  statute,  the 
venue  being  thus  proven.  We  are  of  the  opinion  that  there 
was  evidence  from  which  these  facts  might  have  been  found 
by  the  jury.  This  court  will  not  reverse  upon  the  weight  of 
evidence,  or  where  there  is  evidence  upon  which  the  verdict 
of  the  jury  might  have  been  found. 

On  cross-examination  the  appellant  was  asked  if  he  had  not 
been  confined  in  the  penitentiary  of  Texas  for  receiving  stolen 


i  :!•! 


\i-y\ 


■■!/  \ 


m 

\ 

m\ 

■ .  ,1 
'  ■  \ 

<    :  A 
■  (  . 

i  ..i^>; 


400 


AMERICAN   CRIMINAL  REPORTS. 


goods,  and  answered  that  he  had.  This  is  assigned  as  error. 
It  was  held  recently  in  Holder  v.  State,  25  S.  W.  279,  tliat 
such  a  question  on  cross-examination  was  proper,  as  affecting 
the  credibility  of  the  defendant  when  a  witness  in  his  own 
trial.  The  questions  of  fact  were  all  for  the  jury,  and  we  can 
not  say  there  is  not  evidence  to  support  the  verdict.    Affirmed. 


Ml Ui^  j 


f'c  f 


Berneker  v.  State. 

(40  Neb.  810.) 

Receivinq  Stolen  Goods:  Evidence— Instructions— Character  of  defend- 
ant— Assignment  of  error — Exceptions. 

1.  The  language  of  an  instruction  with  reference  to  the  value  of  goods 

received,  the  prisoner  being  on  trial  for  the  alleged  crime  of  receiving 
stolen  goods,  examined,  and  held  not  erroneous:  or  objectionable. 

2.  Character,  according  to  its  legal  construction,  is  a  fact,  and  means  the 

estimate  in  which  the  individual  is  held  in  tlie  community  in  which  he 
lives;  and  it  is  not  error  on  the  part  of  a  trial  court  to  exclude  the  knowl- 
edge of  a  witness,  purporting  to  have  been  gained  by  personal  acquaint- 
ance or  dealings  with  the  individual  whose  character  is  in  question,  as 
only  the  general  reputation  of  such  individual  is  admissible. 

3.  The  indorsement  of  the  name  of  a  witness  on  the  copy  of  the  information 

contained  in  the  transcript  of  the  case  raises  the  presumption  tlmt  such 
indorsement  was  made  at  the  proper  time,  and,  in  the  absence  of  proof 
to  the  contrary,  such  presumption  will  prevail. 

4.  An  affidavit  whi^h  it  was  claimed  was  used  in  the  hearing  of  » 

for  a  new  trial,  but  the  record  does  not  disclose  whether  it  wa^'  a.-  •'  » • 
presented  at  the  hearing  of  the  motion,  can  not  be  consideicf'  '  any 
purpose  in  this  court  unless  presented  by  bill  of  exceptions,  a  -  ^  thus 
made  a  part  of  the  record  in  the  case. 


I 


Error  to  District  Court,  Douglas  County;  Scott,  Judge. 
One  Berneker  was  convicted  of  receiving  stolen  property', 
and  brings  error.     Affirmed. 

Weaver  cfe  G'dler,  for  plaintiff  in  error. 

Geo.  II.  Hastings,  Attorney-General,  for  the  State. 

Harrison,  J.  During  the  February,  A.  D.  1894,  term  of  the 
District  Court  of  Douglas  County,  on  March  2d,  there  was  an 
information  filed  in  said  court,  charging  the  plaintiff  in  error 


IS  error, 

J79,  that 

atfectirifr 

J  his  own 

M  we  can 

affirmed. 


BERNEKER  v.  STATE. 


4G1 


with  the  crime  of  receiving  stolen  property — certain  goods 
and  merchandise,  of  the  alleged  total  valuation  of  $90.25.  A 
trial  was  had  to  the  court  and  a  jury,  which  resulted  in  a  ver- 
dict of  guilty,  the  value  of  the  property  being  assessed  in  the 
verdict  at  the  sum  of  $35.15.  Motion  for  a  new  trial  was  filed 
for  the  plaintiflf  in  error,  which,  on  hearing,  was  overruled,  and 
the  plaintiff  sentenced  to  a  term  of  three  years  in  the  peniten- 
tiary, to  reverse  which  judgment  and  sentence  these  proceed- 
in<»"s  in  error  were  instituted. 

The  first  assignment  of  error  which  is  urged  in  the  brief  of 
counsel  for  plaintiff  in  error  herein  is  stated  as  follows  :  "  The 
court  erred  in  instructing  the  jury  that,  l)efore  they  could  con- 
vict the  defendant,  they  must  find  the  value  of  the  goods  to  be 
thirty-five  dollars  or  upward."  The  exceptions  to  the  instruc- 
tions were  couched  in  the  following  language :  "  The  defend- 
ant excepts  to  instructions  numbered  three,  four,  five  and  six, 
given  by  the  court  on  its  own  motion."  And  the  fourth  ground 
on  the  motion  for  a  new  trial  stated  :  "  The  court  erred  in 
giving  instructions  three,  four,  five  and  six  of  its  own  motion." 
And  in  the  petition  in  error,  wherein  the  plaintiff  in  error  com- 
plains of  the  instructions,  the  same  words  are  used  as  in  the 
motion  for  a  new  trial,  and  the  instructions  grouped  together 
in  one  paragraph  of  the  assignments.  It  is  not  claimed  that 
any  of  the  instructions  are  erroneous,  or  even  defective,  except 
three,  and  an  examination  of  them  discloses  that  some,  if  not 
all,  are  entirely  applicable  to  the  facts  developed  in  the  case  on 
trial,  and  free  from  error,  which  brings  this  assignment  within 
the  rule  announced  in  Iliatt  v.  Kinkaid,  40  Neb.  178,  58  N.  W. 
700,  in  which  case  it  was  held  by  this  court  that  "an  assignment 
of  error,  as  to  the  giving  <?n  mmse  of  certain  instructions,  will  be 
considered  nofurther  than  to  ascertain  that  any  of  such  instruc- 
tions was  properly  given.  See,  also,  McDonald  v.  Bowman, 
40  Neb.  2(59.  and  Jenkins  v.  Mitchell,  40  Neb.  6fi4,  59  N.  W. 
90,  and  in  which  the  rule  above  quoted  was  approved  and  fol-\ 
lowed.  This  would  effectually  dispose  of  this  assignment,  and 
obviate  any  necessity  for  further  consideration  of  it,  but,  inas- 
much as  the  plaintiff  in  error,  in  his  motion  for  a  new  trial,  has 
further  complained  of  this  same  instruction.  No.  3.  in  the  fol- 
lowing words,  "  That  the  court  erred  in  instructing  the  jury 
that,  in  order  to  find  defendant  guilty,  they  must  find  the  value 
of  the  property  received  by  him  to  be  thirty-five  dollars  or 


i;, 

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4G2 


AMERICAN  CRIMINAL  REPORTS. 


upward,"  we  will  give  it  further  notice.  The  instruction  com- 
plained of  reads  as  follows :  "  The  facts  necessary  to  be  estab- 
lished by  the  evidence,  beyond  a  reasonable  doubt,  to  warrant 
a  conviction  of  defendant,  are :  That  the  defendant,  at  or 
about  the  time  named  in  the  information,  and  at  and  within 
the  county  of  Douglas  and  State  of  Nebraska,  received  tlie 
goods  described  in  the  information,  or  some  of  them;  that  tlie 
same  were  the  goods  of  the  Fremont,  Elkhorn  &  Missouri  Ivuil- 
road  Co.;  that  the  goods  received  by  defendant  had  been  stolon; 
that  defendant  received  the  goods  knowing  them  to  have  been 
stolen,  and  with  the  intent  to  defraud  the  owner,  the  Fremont, 
Elkhorn  &  Missouri  Railroad  Co.,  and  uiat  the  value  of  the 
goods  wus  thirty-live  dollars  or  upward.  If  these  facts  have 
not  been  established  beyond  a  reasonable  doubt,  you  should 
acquit  the  defendant;  if  all  these  facts  have  been  established 
beyond  a  reasonable  doubt  by  the  evidence,  you  should  convict 
the  defendant."  Here  the  court  stated  the  essential  elements 
of  the  crime  alleged  to  have  been  committed,  and  necessary  to 
be  proved  by  the  state  beyond  a  reasonable  doubt  before  it 
could  claim  a  conviction  of  the  prisoner  by  the  jury  then  try- 
ing the  prisoner,  and,  in  the  portion  of  the  instruction  in  which 
the  value  was  referred  to,  the  court  did  no  more  than  to  use 
the  same  or  like  language  to  that  employed  by  the  lawmaker 
who  framed  the  statute  wherein  the  crime  for  which  the 
plaintiff  was  being  prosecuted  is  defined.  The  portion  of  sec- 
tion 116  of  the  Criminal  Code,  under  which  the  plaintiff  was 
being  prosecuted,  to  which  attention  is  directed,  is  as  follows  : 
"  If  any  person  shall  receive  or  buy  any  goods  or  chattels  of 
the  value  [of]  thirty-five  dollars  or  upward,  that  shall  be 
stolen  or  taken  by  robbers  with  intent  to  defraud  the  owner 
or  shall  harbor  or  conceal  any  robber  or  thief  guilty  of  felony, 
knowing  him  or  her  to  be  such,  every  person  so  offending  shall 
be  imprisoned  in  the  penitentiary  no  more  than  seven  yea,rs 
nor  less  than  one  year."  We  are  satisfied  that  no  prejudice 
could  have  resulted  to  plaintiff  in  error  from  the  giving  of  the 
instruction  containing  the  sentence  indicated  in  regard  to  value, 
simply  defining,  as  it  did,  one  of  the  constituent  elements  of 
the  alleged  crime,  as  it  was  defined  in  the  statutes  which  pro- 
hibited the  crime  and  provided  a  punishment  for  its  commis- 
sion. 
It  is  further  complained  that  the  court  erred  in  refusing  to 


|tion  com- 
be estal). 
warrant 
t,  at  or 
'<!  within 
ived  the 
that  the 
\*wi  IJail- 
■n  stolen; 
lave  been 
I'remont, 
le  of  the 
cts  Iiave 
1  should 
at)lished 
1  convict 
Jloments 
essary  to 
before  it 
hen  try- 
in  which 
n  to  use 
wniaker 
lich  the 
I  of  sec- 
itiff  was 
ollows  : 
ttels  of 
hall   be 
!  owner 
felony, 
Jg  shall 
I  3^ears 
ejudice 
of  the 
>  value, 
ents  of 
h  pro- 
»mmis- 


ing  to 


BERNEKER  v.  STATE. 


463 


permit  the  plaintiff  in  error  to  sho^"  that  his  reputation  for 
honesty  was  good  in  the  community  in  which  he  resided.  Tiie 
offer  of  the  proof  was  contained  in  the  evidence  of  but  one  wit- 
ness— Henry  Habbens.  The  portion  of  the  record  in  which 
the  examination  of  this  witness  appears  is  as  follows :  "  Henry 
Habbens,  being  called  on  behalf  of  defendant  and  duly  sworn, 
testified  as  follows  :  Examined  by  Mr.  Weaver :  Q.  State 
your  full  name  to  the  jury,  Mr.  Habbens,  A.  Henry  Hab- 
bens. Q.  Where  do  you  reside  ?  A.  1408  North  18th  street, 
Omaha.  Q.  How  long  have  you  lived  in  Omaha?  A.  Twelve 
years.  Q.  Are  you  acquainted  with  the  defendant,  ]\[r.  Ber- 
neker?  A.  Yes,  sir.  Q.  How  long  have  you  known  him  ? 
A.  Between  four  and  five  years.  Q.  What  is  your  business  'i 
A.  I  am  engaged  in  the  brewing  business — Omaha  Brewing 
Association.  Q.  You  say  you  have  known  the  defendant 
about  four  years  ?  A.  I  think  it  has  been  between  four  and 
five.  Q.  State  from  your  acquaintanceship  with  the  defend- 
ant what  you  would  say  about  his  being  an  honest,  upright, 
straightforward  man.  (Objection  by  the  state  as  irrelevant, 
immaterial,  incompetent,  defendant  not  having  been  put  upon 
the  stand.  Sustained.  Defendant  excepts.^  Q.  State,  Mr. 
Witness,  if  you  are  acquainted  with  the  general  reputation  of 
the  defendant  for  industry,  uprightness,  and  being  a  straight- 
forward man.  (Objection  by  state  as  irrelevant,  incompetent 
and  immaterial.  Sustained.  Defendant  excepts.)  Q.  Mr. 
Habbens,  are  you  acquainted  with  the  general  reputation  of 
the  defendant  for  honesty  and  uprightness,  and  being  a  straight- 
forward man,  in  the  community  in  which  he  lives  ?  (Objection 
by  the  state  as  irrelevant,  incompetent,  immaterial  and  no  foun- 
dation laid  for  the  question.)  Q.  And  among  those  with  whom 
he  associates  ?  (Objection  sustained.  Defendant  excepts.)  Q, 
From  your  acquaintanceship  with  the  defendant,  what  would 
you  say  as  to  his  being  an  honest,  straightforward,  upright 
man?  (Objection  by  state  as  irrelevant,  immaterial.  Sus- 
tained, and  defendant  excepts.)  Q.  State  Avhether  or  not  you 
have  had  any  dealings  with  the  defendant  in  the  last  three  or 
four  years,  and  during  your  acquaintanceship  with  him.  A. 
Yes,  sir,  I  have.  Q.  To  what  extent  ?  (Objection  by  state 
as  irrelevant,  incompetent,  immaterial.  Overruled.  State  ex- 
cepts.) A.  I  have  seen  him  probably  two  or  three  times  a 
week,  and  have  done  business  with  him,  probably  to  the  amount 


li'i 


464 


AMERICAN  CRIMINAL  REPORTS. 


„,4|| 


H 

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I 


of  j^20,000  or  $30,000  a  yenr.  Q.  Do  you  know  what  his 
genoral  reputation  is  for  industry,  uprightness,  and  fair  deal- 
ing,  straightforward  man  among  the  people  with  whom  he 
lived  and  with  whom  he  deals  ?  (Objection  by  the  state  as  in- 
comix»tent,  irrelevant,  immaterial,  no  proper  foundation  laid 
for  the  question,  and  having  been  already  gone  over.  Sus- 
tained. Defendant  excepts.)  Q.  From  your  knowledge  of 
the  defendant  and  your  business  dealings  with  him,  Avhat  can 
you  say  as  to  his  being  an  honest,  upright,  and  straightforward 
man  ?  (Objection  as  irrelevant,  incompetent,  immaterial,  and 
having  already  been  ruled  upon.  Sustained,  and  defendant 
exce])ts.)  Q.  From  your  business  dealings  with  the  defend- 
ant, do  you  know  whether  or  not  h3  is  an  honest,  straightfor- 
ward, upright  person  ?  (Objection  by  state  as  incompetent, 
irrelevant,  immaterial,  leading,  already  gone  over,  question 
having  been  asked  and  ruled  upon.  Sustained.  Defendant 
excepts.)  Q.  You  may  state  what  you  know  about  the  de- 
fendant being  an  honest,  straightforward,  upright  man.  (Ob- 
jection by  state  as  irrelevant,  incompetent,  and  immaterial, 
already  been  j»one  over  and  ruled  upon  by  the  court.  Sustained. 
Defendant  excepts.)  Defendant  offers  to  show  by  the  witness 
that  the  defendant  is  an  honest,  straightforward,  upright  per- 
son. (Objection  by  state  as  irrelevant,  incompetent,  immaterial, 
already  been  gone  over  and  ruled  upon  by  the  court.  Sus- 
tained. Defendant  excepts.)  The  Court :  The  C(Airt  has  not 
and  does  not  propose  to  deprive  counsel  of  the  right  to  prove, 
if  he  can,  the  matters  offered,  provided  he  puts  a  proper  ques- 
tion for  the  purpose  of  calling  out  such  proof.  (Witness  ex- 
cused.) "  It  was  unquestionably  the  right  of  plaintiff  to  in- 
troduce evidence  of  his  character  or  reputation  (for  they  are 
convertible  terms)  for  honesty  in  the  community  in  which  he 
resided,  or  his  general  reputation  for  honesty,  but  "  character 
is  a  fact  which  is  proved  by  another  fact — general  reputation. 
It  can  not  be  shown  by  evidence  of  particular  and  specific 
facts,  but  may  be  proved  by  negative  testimony.  It  must, 
therefore,  be  proved  by  Avitnesses  who  are  acquainted  with  the 
general  reputation  of  the  person  whose  character  is  in  issue, 
and  this  acquaintance  must  be  shown  before  the  evidence  will 
be  admitted.  The  individual  opinion  of  the  witness  is  inad- 
missible." 3  Am.  &  Eng.  Enc.  Law,.114,  and  notes.  "  Charac- 
ter, in  the  sense  in  which  the  terra  is  used  in  jurisprudence, 


what  his 
fair  (leal. 
[whom  he 
tato  as  in- 
iition  laid 
er.    Sus. 
kv]e(l/»e  of 
what  can 
btforward 
[erial,  and 
lefendant 
Je  (lefend- 
raightfor- 
>mpetent, 
question 
>efendant 
it  the  de- 
m.     (Ob- 
material, 
ustained. 
e  witness 
•ight  per- 
material, 
rt.     Sus- 
fc  has  not 
to  prove, 
ler  ques- 
tness  ex- 
ff  to  in- 
they  are 
^hich  he 
laracter 
utation. 
specific 
t  must, 
^ith  the 
n  issue, 
ice  will 
is  inad- 
^harac- 
idence, 


BERNEKER  v.  STATE. 


465 


means  the  estimate  attached  to  the  individual  by  the  commu- 
nity, not  the  real  qualities  of  ♦he  individual  as  conceived  by 
the  witness.  In  other  Avords,  it  ;■?  not  what  the  individual  in 
question  really  is,  but  what  he  is  held  to  be  by  the  society  in 
which  he  moves."  "Whart.  Cr.  Ev.,  c.  2,  §  58.  "  The  particular 
trait  or  kind  of  character  to  be  proved  must,  of  course,  be 
determined  from  the  nature  of  the  question  in  issue.  *  *  * 
One  may  have  an  excellent  reputation  for  some  things,  and  a 
very  bad  one  for  others."  Indianapolis  Journal  JV.  Co.v.  Pugh, 
33  N.  E.  (Ind.)  991.  A  perusal  of  the  examination  of  the  wit- 
ness, Habbens,  discloses  that  there  was  not  any  question  asked 
him  that  was  not  objectionable,  viewed  in  the  light  of  the  above 
rules  in  reference  to  evidence  of  reputation,  either  in  seeking 
to  call  out  testimony  of  some  other  trait  than  honesty  or  the 
reputation  of  the  party,  not  gcnerall}',  but  in  a  limited  sense — 
either  the  opinion  of  the  witness  formed  alone  from  his 
acquaintanceship  with  him,  or  the  plaintiff's  character  among 
his  associates.  This  last  is  what  is  asked  for  in  the  least  objec- 
tionable interrogatory  propounded  during  the  whole  examina- 
tion of  the  witness.  Furthermore,  the  only  o%r  to  prove 
made,  it  will  be  remembered,  was  in  the  following  words : 
"  Defendant  offers  to  show  by  the  witness  that  the  defendant 
is  an  honest,  straightforward,  upright  person."  This  was 
clearly  bad,  as  the  offer  is  to  show  by  the  witness,  not  the  repu- 
tation or  character  of  the  part}'  in  question,  but  to  show  by 
the  witness  his  opinion  or  estimate  of  them.  And,  immediately 
following  this,  the  court  made  the  following  statement :  "  The 
court  does  not  propose  to  deprive  counsel  of  the  right  to  prove, 
if  he  can,  the  matters  offered,  provided  he  puts  a  proper  ques- 
tion for  the  purpose  of  calling  out  such  proof."  But  the  wit- 
ness was  excused,  and  there  was  no  further  effort  to  prove  the 
r  'putation  of  Berneker.  We  can  discover  no  error  in  this  por- 
tion of  the  record  in  the  least  degree  prejudicial  to  the  plaintiff 
in  error.  He  was  given  ample  opportunity  to  show  his  repu- 
tation or  character  for  honesty  in  the  proper  manner,  but 
failed  to  do  so. 

Another  assignment  of  error  is  stated  as  follows :  "  The 
court  erred  in  admitting  evidence  of  defendant  receiving  prop- 
erty at  dates  subsequent  to  the  receiving  on  which  and  for 
which  he  was  convicted."    This  assignment  of  error  is  insuf- 


':'l 


■  1 

Iv        1 

1 

i  '■  1 

■    .,  ? 
.   1  :  :.'\ 

1 

'i  i' .!      ■ 

\       '    ■     :'■        '■■'     -^ 

iM 

kiii 

400 


AMERICAN  CRIMINAL  REPORTS. 


\u 


K.'t 


^    1 


V  • 


flcient  ami  imlefinito  in  that  it  does  not  designate  tlio  particu- 
lar ])ortion  of  the  evidence  to  which  attention  is  souglit  to  be 
directed,  and  which  it  is  claimed  the  court  erred  in  adniiltino;. 
There  was  some  testimony  of  the  kind  indicated  in  the  above 
assignment  introduced  during  the  trial  of  the  case,  but  a  search 
througli  the  reconl  discloses  that  plaintiff  in  error  objected  to 
only  one  interrogatory  of  those  pro))ounded  with  the  view  to 
eliciting  such  evidence.  Following  the  rule  announced  in 
Gt'iihaia  V.  JlaHnett,  10  Neb.  518,  tiiis  assignment  is  too  in- 
definite to  be  noticed  or  to  present  the  question  desired  to  be 
raised  for  review. 

During  the  trial  of  this  case  in  the  district  court,  one  Thomas 
Bennett  was  sworn  on  Ijehalf  of  the  state.  Counsel  for  the 
plaintiff  in  error  interposed  the  following  objection  to  liis 
testimony :  "  J)efendant  objects  to  witness  testifying,  for  tlie 
reason  tluit  his  name  is  rot  indorsed  on  tlie  information,  a 
copy  of  which  was  served  upon  the  defendant."  Overruled; 
defendant  excepts. 

An  examination  of  the  copy  of  the  original  information 
used  upon  the  trial,  as  embodied  in  tlie  transcript  and  a  part 
of  the  record  here,  discloses  that  the  name  of  the  witness 
Bennett  api)eared  among  the  names  indorsed  upon  it,  and 
this  raises  the  presumption  that  it  was  properly  indorsed  in 
the  manner  and  at  the  time  required  by  the  law  regulatin;^ 
such  indorsements.  This  meets  the  objection  made  and  the 
assignment  of  error  on  this  point  in  both  the  motion  for  a  new 
trial  and  the  petition  in  error.  It  is  evident  from  an  exami- 
nation of  some  ])ortions  of  the  papers  filed  here  that  the  point 
intended  to  be  raised  by  the  objection  of  counsel  for  the 
plaintiff  in  error  was  that  the  name  of  the  witness  Bennett 
was  not  indorsed  or  did  not  appear  upon  the  ccpy  of  the 
information  served  upon  the  plaintiff  in  error,  and  tliat,  if  it 
appeared  on  the  information  at  the  time  of  trial,  it  had  been 
indorsed  thereon  at  a  time  or  date  subsequent  to  its  filing  by 
the  clerk,  and  without  notice  to  the  prisoner  or  his  attorneys, 
and  without  any  knowledge  on  his  or  their  part  of  such 
action. 

There  is  an  affidavit  attached  to  the  papers  in  this  court 
which  states,  in  substance,  that  the  copy  of  the  information 
served  upon  plaintiff  in  error  did  not  have  indorsed  upon  it 
the  name  of  Thomas  Bennett;  that,  after  the  original  informa- 


AS  court 
nnation 
upon  it 
nforniu- 


DERNEKEK  v.  STATE. 


407 


jlio  particu- 
Jiight  to  W 
Miniltiii^', 
the  iiltovc 
It  a  search 
I'hjectecl  to 
llio  view  to 
[ounceil  in 
is  too  ill- 
ireti  to  Ix' 

e  Thomas 
*el  for  the 
on  to  Jiis 
Iff,  for  tlie 
■iiiJition,  a 
->verrule(l; 

formation 
nil  a  part 
»e  witness 
n  it,  and 
(lorsed  in 
eguiating 

and  tlie 
for  a  new 
n  exanii- 
the  point 

for  the 

Bennett 
y  of  tJie 
liat,  if  it 
lad  been 
iling  by 
itornejs, 
of  such 


tion  was  filed  with  the  clerk  of  the  court,  the  name  of  tiie  wit- 
ness Hennett  was  indorsed  upon  it,  without  the  knowledge  of 
or  notice  to  the  pUiintifT  in  error  or  his  attorneys;  and  that 
they  were  not  aware  of  such  indorsement  until  after  the  case 
n|,'uin8t  plaintiff  in  error  was  called  for  trial,  and  a  jury  im- 
paneled for  such  trial.  This  affidavit,  it  is  claimed,  was  used 
on  the  hearing  of  the  motion  for  a  new  trial,  but  whether  it 
was  used  or  referred  to  on  the  hearing  of  the  motion  for  a  ne\^ 
trial  we  are  not  informed,  and  the  record  nowhere  discloses. 
It  is  not  mentioned  in  the  record  as  having  been  used  for  any 
purpose  in  the  court  below,  and  has  not  been  by  name,  or  as  an 
exhibit,  or  by  reference  to  it,  made  or  preserved  as  a  part  of 
tlie  bill  of  exceptions,  and  can  not  be  considered  here.  See 
Van  Etten  v.  Butt,  32  Neb.  285. 

The  only  other  assignment  of  error  in  the  case  may  be  con- 
sidered under  that  of  the  insufficiency  of  the  evidence  to  sup- 
port the  verdict.  We  are  satisfied,  from  a  careful  and  thorough 
examination  of  all  the  evidence  in  the  case,  on  all  the  points 
involved  in  the  inquiry  in  the  case,  that  it  was  ample  and  suflH- 
cient,  and  the  jury  warranted  in  the  conclusion  that  the  testi- 
mony showed  the  plaintiff  in  error  guilt}'  of  the  crime  charged 
l)3yond  a  reasonable  doubt.  The  judgment  of  the  district 
court  is  affirmed.    Affirmed. 

Note. — Evidence — SaJJlciency  of. — It  is  necessary,  in  a  prosecution  for  re- 
ceiving stolen  property,  to  prove  tliat  defendant  knew  it  was  stolen,  but  such 
knowledi^e  need  not  be  personal  or  actual.  State  v.  Onldblot,  50  Mo.  App. 
186.  Finding  that  the  defendant  knew  the  goods  were  stolen  is  warranted 
by  evidence  that  he  purchased  them  from  one  whom  he  knew  to  be  a  thief, 
without  inquiring  as  to  his  right  to  them,  except  to  ask  him  where  he  got 
them,  to  which  the  reply  was  "At  home."    State  v.  Ooldblot,  supra. 

If  the  accused  did  not  know  the  facts  under  which  the  property  was  taken, 
but  believed  from  the  circumstances  that  the  propei'ty  had  eitlier  been  em- 
bezzled or  stolen,  and  it  had  actually  been  stolen,  he  may  be  convicted  of 
receiving  stolen  property.  Comm.  v.  Leonard,  146  Mass.  473;  7  Am.  Cr. 
Rep.  593. 


J; 


III 


'I 


M 


m 


r 


.'iriSi 


im 


468  AMERICAN  CRIMINAL  REPORTS. 


State  v.  Crocker. 

(4  Wyo.  — ;  40  Pac.  681.) 

Recognizance:    Bail  in  capital  cases — Jurisdiction  of  Supreme  Court- 
Hearing  of  application. 

1.  Ui  ider  Laws  1888,  c.  66,  providing  that  when  an  important  or  difficult 

question  arises  in  an  action  pending  in  the  district  court  ihe  judge  may 
cause  the  same  to  be  reserved,  and  sent  to  the  supreme  court  for  its 
decision,  and  Const.,  art.  5,  §  2,  giving  the  supreme  court  a  general 
superintending  control  over  all  inferior  courts,  the  supreme  court  has 
jurisdiction  of  questions  certified  from  the  district  court  as  to  whether 
a  person  indicted  for  murder  should  be  admitted  to  bail. 

2.  Laws  1890,  c.  23,  §  1,  providing  that  no  person  under  indictment  for  a 

capital  offense  shall  be  admitted  to  bail,  is  in  conflict  with  Const.,  art. 
1,  §  14,  providing  that  "  all  pereons  shall  be  bailable  by  sufficient  sure- 
ties, except  for  capital  offenses  when  the  proof  is  evident  or  the  pre- 
sumption great." 

3.  Under  Const.,  art.  1,  §  14,  providing  that  "all  persons  shall  be  bailable 

by  sufficient  sureties,  except  for  capital  offenses  when  the  j)roof  is  evi- 
dent or  the  presumption  feTeat,"  one  indicted  for  murder  in  the  first  de- 
gree is  entitled  as  of  right  to  a  hearuig  on  an  application  for  admission 
to  bail. 

4.  On  the  hearing  of  the  application  for  admission  to  bail  by  one  under  in- 

dictment for  murder  in  the  firet  degree  to  determine  whether  or  not 
the  proof  is  evident  or  the  presumption  great,  the  burden  of  proof  is 
on  defendant. 

5.  In  such  a  case  both  parties  are  entitled  to  compulsory  process  to  secure 

the  attendance  of  witnesses. 

Reserved  ease  from  District  Court,  Uinta  County;  Jesse 
Kni(?ht,  Judge. 

Edwin  S.  Crocker  was  indicted  in  the  district  court  of  Uinta 
county  for  murder  in  the  first  degree.  After  pleading  not 
guilty  to  the  indictment,  he  filed  and  presented  an  application 
to  be  admitted  to  bail  on  the  ground  that  the  proof  of  his 
guilt  is  not  evident,  nor  the  pre.^n.mption  great.  Thereu])on 
the  district  judge,  Hon.  Jesse  Knight,  reserved  the  matter  for 
the  opinion  of  the  supreme  court  upon  several  questions  certi- 
fied to  be  difficult  and  important. 


Benjamin  F.  Fowler,  Attorney-General,  Cyrus  Beard,  3L  C 
Brown  and  J.  G.  Ilmnm,  for  the  State. 

Saimiel  T.Corn,  J.  11.  Jiychnan  smd  Lacy  tfc  Van  Devanter, 
for  defendant. 


fie  Court- 


or  difflcult 

judge  may 

pourt  for  its 

a  general 

»e  court  has 

I  to  whether 

ment  for  a 
^'inst,  art. 
oient  sure- 
or  tlie  pre- 

lie  bailable 
i')of  is  evi- 
lie  first  (le- 
■  adniLssiun 

under  in- 
lier  or  not 
of  proof  is 

s  to  secure 


i"i   Jesse 

3f  Uinta 
ing  not 
•lication 
f  of  his 
^reupon 
tter  for 
IS  certi- 


vantei\ 


STATE  V.  CROCKER. 


460 


PoTTEK,  J.  Edwin  S.  Crocker  stands  indicted  in  the  district 
court  of  Uinta  county  for  the  murder  of  Harvey  Booth.  The 
iiulictinent  charges  murder  in  the  first  degree,  which  is  a  cap- 
ital offense.  He  was  arraigned,  and  pleaded  not  guilty,  and 
was  remanded  to  the  custody  of  the  sheriff,  and  is  confined  in 
the  jail  of  said  county.  On  April  19, 1895,  the  defendant  made 
a  written  a[)plication  to  the  court  for  admission  to  bail,  alleging 
as  ffrounds  or  reasons  therefor  that  the  case  had  been  contin- 
ued for  the  term;  that  such  continuance  was  occasioned  by  the 
fact  that  the  regular  panel  of  the  petit  jury  had  been  dis- 
charged before  the  finding  of  the  indictment,  and  there  was 
not  sufficient  time  remaining  of  the  April  term  within  which 
to  try  the  cause.  Further,  that  he  is  not  guilty  of  any  offense 
charged  in  the  indictment;  that  the  proof  against  him  in  said 
cause  is  not  evident,  and  is  wholly  insufficient  to  authorize  or 
support  a  conviction  for  any  crime  or  offense  whatever;  that 
there  is  no  presumption  of  his  guilt  of  any  offense  charged  in 
said  indictment,  arising  from  the  proof  or  otherwise,  and  that 
the  cause  is  one  in  which  the  defendant  is  entitled  to  bail  un- 
der section  14  of  article  1  of  the  constitution  of  this  state;  and 
further,  that  he  desires,  and  is  able,  to  give  bail  with  sufficient 
sureties  in  any  reasonable  sum  or  amount.  In  the  application 
tlms  presented  a  hearing  was  prayed,  to  the  end  that  he 
might  be  admitted  to  bail.  Upon  the  submission  of  the  ap- 
plication to  the  district  court,  the  judge  thereof,  upon  his  own 
motion,  reserved  the  matter  to  this  court  for  its  opinion  upon 
certain  imj)ortanv.  and  difflcult  questions  deemed  by  the  said 
court  to  arise  upon  said  application.  Said  questions  are  as 
follows :  First.  Cm  and  should  the  district  court  entertain 
an  application  for  bail  by  a  defendant,  after  indictment  found 
and  returned  by  a  grand  jury,  charging  hi  :i  with  the  crime  of 
murder  in  the  first  degree,  when  such  application  for  bail  is 
based  upon  the  fact  that  the  proof  of  guilt  is  not  evident,  and 
the  presumption  of  guilt  is  not  great  ?  Second.  Is  an  indict- 
ment found  and  returned  by  a  grand  jury,  charging  a  capital 
offense,  conclusive  evidence  that  the  proof  of  guilt  is  evident, 
or  that  the  presumption  of  guilt  is  great  ?  Third.  Do  the 
provisions  of  chapter  23  of  the  Session  Laws  of  1890,  approved 
March  3,  1890,  preclude  the  admission  to  bail  of  one  charged 
with  a  capital  offense  in  an  indictment  found  and  returned 
against  him  by  a  grand  jury  ?    Fourth.    Are  any  of  the  pro- 


i  ','■'■  ,     • 

1  :i .  '■  ;r  1           ■  Sit,. 

u     i.:  'III. 

ill  vy  ■  .:^!if, 

nsffiifT 

;  i. 

f 
'■  i 

i  ■ 

i  \i 


')  i 


I  ( 


470 


AMERICAN  ..RIMINAL  REPORTS. 


visions  of  chapter  23  of  the  Session  Laws  of  1890  in  conflict 
with  section  14  of  article  1  of  the  constitution  of  the  state  i 
Fifth.  Where  one  is  charged  by  an  indictment  with  a  capital 
offense,  alleged  to  have  been  committed  January  26,  1895,  do 
the  provisions  of  chapter  23  of  the  Session  Laws  of  1890  pre- 
clude the  defendant  from  admission  to  bail,  or  should  he  be 
admitted  to  bail  if,  upon  a  proper  hearing  and  sufficient  sliowing, 
it  appears  that  the  proof  of  his  guilt  is  not  evident,  and  that 
the  presumption  of  his  guilt  is  not  great— the  time  of  tlie 
death  of  the  deceased  being  admitted  and  conceded  to  be  as 
stated  in  the  indictment,  and  since  the  admission  of  Wyoming 
as  a  state ?  Sixth.  In  capital  offenses  where  the  pjoof  of 
guilt  is  not  evident,  and  the  presum])tion  of  guilt  is  not  great, 
is  bail  a  matter  of  right  in  the  defendant,  under  the  constitu- 
tion and  laws  of  this  state,  after  indictment  found  and  returned 
by  a  grand  jury?  Seventh.  If  the  last  question  be  answered 
in  the  affirmative,  can  and  should  the  court,  or  judge,  in  vaca- 
tion, proceed,  by  hearing  the  evidence,  to  determine  the  char- 
acter of  the  proof  and  the  extent  of  the  presumption,  where 
the  defendant  files  in  the  cause  and  presents  to  the  court  liis 
written  and  sworn  application,  alleging,  among  other  things, 
"  that  he  is  not  guilty  of  any  offense  charged  in  the  said  in- 
dictment, that  the  proof  against  him  in  this  cause  is  not  evi- 
dent, and  is  wholly  insufficient  to  authorize  or  support  a  con- 
viction for  any  crime  or  offense  whatever,  that  there  is  no 
presumption  of  his  guilt  of  any  offense  charged  in  such  indict- 
ment, arising  from  the  proof  or  otherwise,  that  this  cause  is 
one  in  which  the  defendant  is  entitled  to  bail  under  section 
14  of  article  1  of  the  Constitution  of  the  State  of  Wvomin<jr, 
and  that  this  defendant  is  able  and  desirous  to  give  bail  herein, 
with  sufficient  sureties,  in  any  reasonable  sum  or  amount  t "' 
Eighth.  What  is  the  proper  and  necessary  procedure  to  be 
followed  on  a  hearing  had  to  determine  whether  the  proof 
is  evident  or  the  presumption  great  upon  an  application  for 
admission  to  bail,  after  indictment  found,  charging  defendant 
with  a  capital  offense  ?  Upon  such  hearing,  does  the  burden 
of  proof  rest  upon  the  prosecution  or  the  defendant  ?  and  are 
the  state  and  the  defendant  entitled  to  sub]K)enas  and  com- 
pulsory process  to  secure  the  attendance  of  Avitnesses  ?  Ninth. 
Upon  the  hearing  of  an  application  for  bail  in  a  capital  case, 
after  indictment,  should  the  inquiry  be  limited  to  determining 


in  conflict 
the  stated 
[til  a  capital 
\  1SI)5,  do 
*f  iSOD  pre- 
^«"I<1  he  be 
[ntsliowinrr, 
t.  and  that 
|inie  of  the 
[<1  to  be  as 
Wj'oming 
'6  j)roof  of 
i  not  great, 
le  constitu- 
>tl  returned 
J  answered 
S"e,  in  vaca- 
e  the  char- 
ion,  wliore 
e  court  liis 
>er  tJiinos, 
le  said  in- 
is  not  evi- 
>ort  a  con- 
here  is  no 
'cli  indict- 
is  cause  is 
-r  section 
^^yoniin<r, 
til  herein, 
mount  ? " 
>re  to  be 
he  proof 
ition  for 
efendant 
*  hurden 
and  are 
nd  corn- 
Ninth, 
tal  case, 
'niininn: 


STATE  V.  CROCKER. 


471 


the  probable  degree  of  the  homicide  ?  Tenth.  Upon  such  a 
hearing,  where  no  dispute  arises  as  to  whether  the  killing  was 
probably  murder  in  the  first  degree,  on  the  part  of  the  person 
doing  the  slaying,  but  where  the  defendant  denies  all  connec- 
tion with  the  killing,  may  the  inquiry  extend  to  the  probable 
connection  of  the  defendant  with  the  homicide  as  a  guilty 
agent  ? 

Counsel  for  the  state,  in  their  brief,  and  also  upon  oral  ar- 
gument, questioned  the  jurisdiction  of  this  cour*;  to  pass  upon 
(juestions  thus  reserved.  It  is  strenuously  insisted  that  the 
statute  of  the  territory,  which  authorized  such  a  preceeding, 
conflicts  with  the  constitution,  and  attempts  to  confer  upon 
this  court  a  jurisdiction  not  authorized  by  that  instrument. 
At  the  outset  it  should  be  said  that  it  is  not  the  desire  of  this 
court  to  extend,  by  construction,  its  jurisdiction,  nor  to  assume 
to  itself  any  jurisdiction  not  warranted  by  the  constitution,  or 
within  the  fair  and  reasonable  meaning  thereof;  neither  will  it 
hesitate  to  exercise  to  the  fullest  extent,  if  necessary,  the  juris- 
diction and  powers  legally  conferred  upon  the  court  when  re- 
([uired  to  do  so  by  appropriate  proceedings.  The  subject  hns 
been  ably  presented  by  counsel  on  both  sides  in  exhaustive 
arguments  seldom  equaled  in  this  court. 

The  territorial  statute  of  18SS  proviiie?  that  when  an  im- 
portant or  difficult  question  arises  in  an  action  or  proceeding 
pending  before  the  district  court  in  any  county,  the  judge  of 
the  court,  on  motion  of  either  party,  or  upon  his  own  motion, 
may  cause  the  same  to  be  reserved  and  sent  to  the  supreme 
court  for  its  decision.  When  such  a  reservation  occurs,  the 
statute  requires  the  original  papers  in  the  case  to  be  sent  to 
the  supreme  court,  and  that  the  matter  stand  for  hearing  at 
the  next  term  of  such  court  upon  the  papers;  that  upon  the 
hearing  the  supreme  court  may  remand  the  same,  together 
with  the  original  papers,  to  the  district  court  for  further  pro- 
ceedings, and  the  clerk  of  the  supreme  court  is  required  to 
certify  the  order  of  the  court  to  the  clerk  of  the  district  court, 
who,  it  is  provided,  shall  immediately  enter  the  same  upon  the 
journal  of  the  district  court,  and  when  so  entered  such  order 
shall  stand  as  the  order  of  said  district  court.  Laws  1888, 
c.  G6,  p,  14:0.  It  was  held  by  the  supreme  court  of  the  territory 
that  under  this  statute  it  was  indispensable  to  any  action  by 
that  court  that  the  question  which  is  conceived  to  be  diliicult 


:}:■■>.  I'     '  ■■■      ] 


t:.-. 


'■ii 


ii  i  '■ 


if 


l! 


;i 


'iU     i 


:1-;irv; 


i-  11 


472 


AMERICAN  CRIMINAL  REPORTS. 


or  important  s'.iouUl  be  sppcially  stated  by  the  district  court, 
and  without  such  statement  the  supreme  court  had  not  power 
to  consider  any  questions  which  may  arise  in  the  case.  Corei/ 
V.  Corey,  3  Wyo.  210. 

In  Board  of  Conirs  of  Crooh  County  v.  liollins  Inv.  Co.,  3 
"Wyo.  47U,  this  court,  in  considering  certain  reserved  questions 
from  the  district  court  of  Laramie  county,  gave  expression  to 
the  opinion  that  the  statute  of  18SS  was  not  repugnant  to  the 
constitution,  and  was  a  valid  and  subsisting  statute  law  of  tho 
state.  In  that  case,  however,  the  question  of  jurisdiction  was 
not  raised,  or  even  suggested,  by  counsel,  and,  notwithstand- 
ing what  is  there  said,  we  have  given  the  matter  the  benefit  of 
original  investigation.  It  is  conceded  by  counsel  for  the  state 
that  the  act  of  1SS8  was  within  the  power  of  the  legislature 
of  the  territory,  and  was  in  force  as  a  law  thereof;  but  it  is 
urged  that  it  did  not  remain  in  force  after  the  admission  of 
the  state,  for  the  reason  that  it  conflicts  with  the  constitution, 
and  attempts  to  confer  authority  upon  this  court  not  permitted 
thereby.  Section  2  of  article  5  of  the  constitution  is  as  fol- 
lows: "The  supreme  court  shall  have  appellate  jurisdiction, 
co-extensive  with  the  state,  in  both  civil  and  criminal  causes, 
and  shall  have  a  general  superintending  control  over  all  infe- 
rior courts,  under  such  rules  and  regulations  as  may  be  pre- 
scribed by  law," 

Section  3  of  the  same  article  is  as  follows :  "  The  supremo 
court  shall  have  original  jurisdiction  in  quo  warranto  and  man- 
damus as  to  all  state  oificers,  and  in  habeas  corpus.  The  supreme 
court  shall  also  have  power  to  issue  writs  of  mandamus,  re- 
view, prohibition,  habeas  corpus,  certiorari,  and  other  writs 
necessary  and  proper  to  the  complete  exercise  of  its  appellate 
and  revisory  jurisdiction.  Each  of  the  judges  shall  have  power 
to  issue  writs  of  habeas  corpus  to  any  part  of  the  state  upon 
the  petition  by  or  on  behalf  of  a  person  held  in  actual  custody, 
and  may  make  such  writs  returnable  before  himself,  or  before 
the  supreme  court,  or  before  any  district  court  of  the  state  or 
any  judge  thereof."  Counsel  for  the  state  assume  that  the 
jurisdiction  or  authority  given  to  the  supreme  court  by  the 
statute  of  1888  is  original  in  its  nature,  and  therefrom  contend 
that  the  original  jurisdiction  of  tho  court  is  clearly  limited  by 
the  constitution  to  cases  within  which  the  case  at  bar  does  not 
come.    On  the  other  hand,  counsel  for  defendant  insist  that 


^1 


STATE  V.  CROCKER. 


473 


procoodings  of  this  character  are  strictly  within  the  appellate 
jurisdiction  of  this  court,  as  well  as  authorized  by  that  provis- 
ion of  the  constitution  giving  this  court  a  superintending  con- 
trol over  all  inferior  courts.  The  language  of  our  constitution 
is  not  entirely  similar  to  any  to  which  our  attention  has  been 
called.  In  some  of  the  older  states  the  constitutions  respect- 
ively leave  the  jurisdiction  of  the  courts  to  be  defined  by  law. 
This  is  broader  than  our  own.  In  others,  and  probably  the 
majority,  it  is  provided  with  reference  to  the  supreme  court 
that,  except  as  otherwise  provided  in  the  constitution,  it  shall 
possess  appellate  jurisdiction  only.  In  many,  a  superintending 
control  over  all  inferior  courts  is  granted  without  modifica- 
tion, in  others,  sucli  su))erintending  control  with  the  power  to 
issue  certain  remedial  writs  or  writs  of  review.  In  our  own 
case  and  in  Colorado,  and  possibly  some  others,  the  suj^erin- 
tonding  control  is  to  be  exercised  under  such  rules  and  regula- 
tions  as  may  be  prescribed  by  law.  In  the  State  of  Michigan 
the  supreme  court  was  vested  with  a  superintending  control 
over  all  inferior  courts,  and  power  to  issue  certain  writs  and 
determine  the  same,  and  in  other  cases  to  have  appellate  juris- 
diction only.  Two  cases  from  that  state  are  cited  by  counsel 
for  the  state  in  support  of  their  contention :  Sanger  v.  Trues- 
dail,  8  Mich.  543,  and  Jones  v.  Smith,  l-l-  Mich.  334.  'No  opinion 
seems  to  have  been  filed  as  a  basis  for  the  order  in  those  cases, 
at  least  none  is  reportetl;  but  it  is  stated  that  the  court  held 
that  it  possessed  no  jurisdiction  over  cases  reserved  from  the 
circuit  courts,  and  not  involving  the  exercise  of  appellate 
])owers.  In  that  state  there  was  a  statute  authorizing  a  cause, 
so  far  as  necessary,  to  present  the  question  of  law,  to  be  re- 
served for  the  opinion  of  the  supreme  court  whenever  an}' 
question  of  law  should  arise  in  any  civil  cause  or  criminal  prose- 
cution in  any  circuit  court,  which,  in  the  opinion  of  the  circuit 
judge,  should  be  so  reserved.  The  supreme  court  of  that  state 
had  exercised  such  jurisdiction  in  several  cases,  and  in  one 
{Batjfj  V.  City  of  Detroit,  5  Mich.  06)  the  jurisdiction  Avas  ex- 
pressly upheld  in  the  opinion  rendered  by  Justice  Campbell. 
The  jurisdictional  questiou  therein  raised,  however,  seems  to 
have  been  confined  to  such  authority  in  chancery  causes.  Judge 
Campbell  in  that  case  said :  "  When  cases  are  reserved  upon 
these  principles,  we  think  we  have  jurisdiction,  and  will  cheer- 
fully exercise  it."    With  but  one  change  in  the  personnel  of  that 


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.,.-f>,r3  Wivl  ■■■ 


i^ 


474 


AMERICAN  CRIMINAL  REPORTS. 


court  the  contrary  seems  to  have  been  held  in  the  two  cases  first 
above  cited,  and  it  is  somewhat  peculiar  that,  in  view  of  the 
discussion  and  decision  in  Bagg  v.  City  of  Detroit,  the  later 
cases  should  not  have  been  supported  by  an  opinion  in  oni  or 
the  other  announcing  the  reasons  for  the  apparent  overruling 
of  the  former  case. 

The  Michigan  cases  are  the  only  ones  cited  as  directly  in 
point  in  support  of  the  proposition  that  we  are  without  juris- 
diction, although  others  are  referred  to  as  showing  that  such 
reserved  cases  do  not  come  within  the  purview  of  ai)])ollate 
jurisdiction;  but  none  of  them  are  directly  in  touch  with  the 
questions  before  us.     We  respect  very  much  the  learning  and 
ability  of  the  Michigan  court,  but  can  not  accord  so  much  per- 
suasive authority  to  a  decision  even  from  that  court,  which 
does  not  afford  us  a  knowledge  of  the  reasons  upon  which  it  is 
based,  as  we  would  otherwise  be  inclined  to  do.    The  principal 
argument  advanced  in  favor  of  the  contention  that  this  is  not 
within  the  appellate  jurisdiction  is  that  in  this  class  of  cases  no 
decision  or  judgment  has  been  rendered  in  the  lower  court,  and 
there  is  nothing  to  appeal  from  or  to  predicate  error  upon,  and 
therefore  there  can  be  no  appeal  or  proceedings  in  error.     It 
must  be  confessed  that  the  argument  is  not  without  much 
strength,  but  is  it  essential  in  all  cases  to  the  exercise  of  appel- 
late jurisdiction,  that  there  should  have  been  a  juilgment  or 
decision  by  the  trial  court  ?     In  the  exercise  of  such  appellate 
jurisdiction  the  supreme  court  of  the  United  States  for  many 
years  took  cognizance  of  and  decided  cases  certified  from  the 
United  States  circuit  courts  in  which  the  opinions  of  the  circuit 
and  district  judges  were  divided,  and  without  the  entering  of 
any  judgment  in  the  case  below,  by  v'irtue  of  an  act  of  congress 
authorizing  it.     This,  too,  in  the  face  of  a  dissenting  opinion 
in  one  case  by  Justice  Catron,  wholly  based  upon  the  proposi- 
tion that  the  court  had  no  such  jurisdiction,  as  not  being  ap- 
pellate.   It  was  evidently  not  considered  indispensable  to  the 
exercise  of  that  jurisdiction  that  there  should  have  been  a  judg- 
ment or  decision  upon  the  question.    "We  are  not  able  to  per- 
ceive any  distinction  in  this  respect  between  the  act  of  congress 
and  our  own  statute.     In  either  case  no  judgment  is  rendered, 
and,  if  that  determines  whether  the  jurisdiction  is  appellate  or 
not,  then  the  cases  under  the  act  of  congress  would  have  been 
amenable  to  the  same  doctrine  or  contention.    I  think  we  must 


leases  first 
py  of  the 
[the  later 
(in  on  J  or 
rerruliii"' 

[irectly  in 
ut  juris- 
hiit  such 
[appellate 
with  the 
jning-  and 
luch  per- 
ft,  which 
liich  it  is 
l^rincipal 
lis  is  not 
cases  no 
ourt,  and 
ipon,  and 
rror.     It 
ut  much 
of  appel- 
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ipi>ellate 
iv  many 
rom  the 
e  circuit 
3ring'  of 

congress 
opinion 
proposi- 
'in<,'  a|)- 

to  the 
a  judg- 

to  per- 
ongress 
fidered, 
late  or 
'e  been 
e  must 


STATE  V.  CROCKER. 


tiO 


assume  that  the  supreme  court  of  the  United  States  acted  in 
and  determined  the  questions  certified  in  such  cases  on  the 
ground  that,  although  no  judgment  had  been  rendered,  the 
cases  came  within  its  appellate  jurisdiction.  Indeed,  in  the 
case  of  White  v.  Titrk,  12  Pet.  238,  the  Avhole  cause  having 
been  certified  up,  instead  of  certain  separate  questions  of  law, 
and  apparently  in  a  case  wherein  there  would  have  been  no 
appeal  from  any  final  judgment  because  of  the  amount  in- 
volved, the  court  said :  "  This  certificate,  therefore,  brings  the 
whole  cause  before  this  court;  and,  if  we  were  to  decide  the 
questions  presented,  it  would,  in  effect,  be  the  exercise  of  orig- 
inal, rather  than  appellate,  jurisdiction."  And  in  Veazie  v.  Wad- 
leigh,  11  Pet.  55,  the  same  court,  by  Story,  J.,  in  referring  to 
the  character  of  the  proceeding,  in  a  case  in  which  a  discon- 
tinuance was  moved  by  the  plaintiff  below,  and  the  defendants 
insisted  upon  their  right  to  have  a  decision  upon  the  certified 
questions,  expressed  itself  thus:  "In  construing  a  statute 
providing  for  such  a  novel  mode  of  obtaining  the  decision  of 
an  appellate  court  upon  the  matters  of  controversy  between 
the  parties,  it  is  not  surprising  that  there  should  be  some  diffi- 
culty in  ascertaining  the  precise  rights  of  the  parties."  And 
again :  "  It  is  clear  that  the  statute  does  not,  upon  the  certifi- 
cate of  division,  remove  the  original  cause  into  this  court.  On 
the  contrary,  it  is  left  in  the  possession  of  the  court  below  for 
the  purpose  of  further  proceedings  if  they  can  be  had  without 
prejudice  to  the  merits;  so  that,  in  effect,  the  certified  questions 
only,  and  not  the  original  cause,  are  removed  to  this  court." 
And  so  it  was  held  that,  if  one  originally  having  the  right  to 
discontinue  the  cause  in  the  lower  court  had  done  so,  it  left  the 
appellate  court  with  nothing  to  decide  but  abstract  questions 
of  law.  Many  other  opinions  in  that  court  might  be  quoted 
from  to  further  illustrate  this  point,  but  we  will  only  cite  some 
of  the  cases  in  which  questions  arising  in  such  proceedings 
have  been  considered.  If.  S.  v.  Gurney,  4  Cranch  333;  Sergeant 
V.  Biddle,  4  Wheat.  50S;  U.  S.  v.  Wittherger,  5  Wheat.  76; 
U.  S.  V.  Daniel,  6  Wheat.  542;  Willinks  v.  IIullingswoHh,  Id. 
240;  Miller  v.  Stewart,  9  Wheat.  680;  Schim7nelj>e7iich  v.  Bayard, 
1  Pet.  264;  Bamk  v.  Owens,  2  Pet.  527;  U.  S.  v.  Randenhush, 
8  Pet,  288;  U.  S.  v.  Chicago,  7  How.  185;  Ex  parte  Milligan, 
4  Wall.  2;  Ogle  v.  Lee,  2  Cranch  33;  Adaina  v.  Jones,  12  Pet. 
207;  jDow  v.  Johnson,  100  U.  S.  158-163. 


',■1.? 


1 

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1  Ui'  - 

^^B ' 

V, 

■M 


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^"i- 


'  iii'fi" 


476 


AMERICAN  CRIMINAL  REPORTS. 


A  somewhat  analogous  question  being  before  the  supremo 
«!Ourt  of  Ohio,  Judge  Thurman  gave  it  as  his  opinion  that  the 
law  might  allow  an  appeal  before  judgment;  that  it  was  not 
clear  that  there  was  no  such  thing  as  appellate  jurisdiction 
unless  there  is  a  judgment  or  decree  to  be  appealed  from. 
True,  the  case  was  not  decided  upon  that  point,  but  the  ques- 
tion was  fully  discussed  in  the  opinion.  Chase  v.  Waahburn,  2 
Ohio  St.  99. 

In  Wisconsin  a  statute  was  enacted  by  which  it  was  provided 
that  if,  after  conviction  of  any  person  in  a  circuit  court,  any 
question  of  law  shall  arise  which,  in  the  opinion  of  the  judge, 
shall  be  so  important  or  so  doubtful  as  to  require  the  decision 
of  the  supreme  court,  he  shall,  if  the  defendant  desire  it,  or 
consent  thereto,  report  the  case,  so  far  as  may  be  necessary  to 
present  the  question  of  law  arising  therein,  and  thereupon  all 
proceedings  in  that  court  shall  be  stayed.  The  constitution  of 
that  state  confines  the  jurisdiction  of  the  supreme  court  to  ap- 
pellate proceedings  in  stronger  language  than  we  are  bound  by. 
The  supreme  court  of  Wisconsin  has  taken  jurisdiction  of 
many  such  questions,  all  before  final  judgment.  In  /State  v. 
Felloics,  50  Wis.  65,  after  plea  of  guilty  of  adultery,  the  ques- 
tion was  certified  to  the  supreme  court  whether  the  facts  stated 
in  the  information  constituted  the  said  crime.  The  answer 
was  in  the  affirmative,  and  the  order  of  the  court  was  that  the 
circuit  court  be  directed  to  proceed  to  judgment.  In  State  v. 
Goodrich,  84  Wis.  359,  the  questions  were  certified  upon  a  mo- 
tion in  arrest  of  judgment,  and,  the  questions  being  answered 
in  the  negative,  the  supreme  court  advised  the  municipal  court 
to  arrest  judgment,  and  discharge  the  defendant  from  custody. 
No  judgment  having  been  rendered,  and  neither  party  appeal- 
ing or  grounding  error  upon  any  ruling  of  the  lower  court, 
that  court  would  not  have  had  jurisdiction  if  the  position  of 
counsel  for  the  state  is  sound.  We  can  not  adopt  the  view  that 
this  class  of  cases  invoke  any  original  jurisdiction  in  this  court. 
No  process  issues  from  this  court,  no  pleadings  are  filed  here, 
no  judgment  is  rendered  by  us.  It  may  be  doubtful  if  the 
provision  of  section  3  of  chapter  <jQ  of  the  laws  of  1888,  that 
our  order  shall  stand  as  the  order  of  the  district  court  when 
entered  on  its  journal,  is  now  proper;  but  it  has  not  been  the 
custom  of  this  court  to  regard  that  provision.  In  all  cases  we 
have  either  confined  ourselves  to  an  answer  merely  of  the 


pupromo 
that  tlio 
Jivas  not 
Isdiction 
M  from. 
Pe  ques- 
^burn,  2 

Irovided 

irt,  any 

judge, 

lecision 


STATE  V.  CROCKER. 


477 


questions  certified,  or  advised  or  directed  what  order  the  lower 
court  should  make.  If,  in  any  case,  we  have  overstepped  that 
custom,  it  has  been  an  inadvertence.  On  the  other  hand,  we 
lire  unable  to  avoid  the  conclusion  that  such  cases  come  within 
the  appellate  jurisdiction  of  this  court.  Beyond  that,  however, 
the  constitution  grants  to  the  supreme  court  a  superintending 
control  over  all  inferior  courts  under  such  rules  and  regula- 
tions as  may  be  prescribed  by  law.  Why  may  not  the  legisla- 
ture, under  this  clause,  well  authorize  such  superintending  con- 
trol to  be  exercised  in  important  and  diliicult  matters  in  the 
manner  provided  for  by  the  statute  of  1888?  It  seems  to  us 
that  there  is  neither  impropriety  nor  invalidity  in  so  doing. 
The  advantages  of  such  a  proceeding  are  well  shown  in  an 
opinion  of  the  supreme  court  of  Connecticut.  Nichols  v.  City 
of  Bridgeport,  27  Conn.  4.59. 

Eeferring  to  a  similar  statute  of  that  state,  the  court  say : 
"  It  was  adopted  for  the  purpose,  among  others,  *  *  » 
for  the  benefit  of  its  suitors  by  procuring  in  that  mode  in 
advance  the  opinion  of  this  court  on  questions  of  difficulty  or 
importance  which  might  otherwise,  after  the  final  determina- 
tion of  a  case,  be  brought  before  us  by  a  writ  of  error,  and 
thus  settling,  at  the  earliest  practicable  period,  points  arising 
on  the  trial  of  the  case,  or  in  the  previous  stages  of  it,  which 
otherwise  could  be  reviewed  only  by  writ  of  error,  and  where 
the  reversal  of  the  decisions  on  them  would  be  attended  with 
great,  and,  as  the  event  would  prove,  useless,  delay  and  ex- 
pense, already  sustained,  in  addition  to  that  which  would  be 
afterward  incurred  by  another  trial  of  the  case.  A  reference 
to  a  case  reserved  for  the  opinion  of  this  court  on  a  demurrer 
to  a  declaration  at  law  or  bill  in  equity,  or  on  facts  specially 
found  by  the  court  or  jury,  or  on  a  motion  for  new  trial  for 
alleged  errors  in  the  rulings  or  charge  of  the  superior  court, 
will  at  once  suggest  other  and  very  great  advantages,  which  it 
is  unnecessary  to  specify,  attending  the  practice  of  reserving 
questions  for  our  advice."  We  quote  from  that  ease,  not 
because  it  is  an  adjudication  supporting  our  conclusion,  because 
in  that  state  the  legislature  has  constitutional  authority  to 
define  the  jurisdiction  of  the  various  courts,  but  as  nicely 
expressing  the  benefits  which  may  generally  accrue  from  such 
a  mode  of  proceeding.  Should  this  privilege  at  any  time  be 
abused,  we  apprehend  this  court  or  the  legislature  can  easily 


«!:•■ 


;i.^' 


4r| 

I  1.   i 


I  ll!, 


478 


AMERICAN  CRIMINAL  REPORTS. 


remedy  the  same.  We  therefore  conclude,  upon  this  braiuli 
of  the  case,  that  this  court  has  jurisdiction  of  this  matter, 
under  the  provisions  of  the  statute  of  1888,  and  that  such 
jurisdiction  is  permitted  by  the  constitution. 

We  now  come  to  a  consideration  of  the  questions  reserved 
for  our  decision.  The  constitutional  right  to  bail  is  granted 
by  the  provisions  of  section  14  of  article  1,  as  follows:  "All 
persons  sliall  be  bailable  by  sufficient  sureties,  except  for  ca]:- 
ital  offenses,  when  the  proof  is  evident  or  the  presumption 
great."  The  right  to  furnish  bail  with  sufficient  sureties,  then, 
arises  in  favor  of  any  person  accused  of  crime,  and  before 
conviction,  absolutely  and  without  exce|)tion  in  cases  of  all 
crimes  not  punishable  with  death,  and  in  capital  cases  when 
the  proof  is  not  evident  or  the  presumption  not  great.  This 
much,  at  least,  is  clear,  and  is  apparently  conceded.  It  is  ably 
insisted,  however,  that  after  indictment  found  it  is  conclusive 
that  the  ])roof  is  evident,  and  that  the  presumption  of  guilt  is 
great,  so  far  as  the  question  of  admitting  to  bail  is  concerned. 
This,  we  understand,  is  contended  for  as  a  general  principle, 
and  a  statute  of  the  territory  of  Wyoming,  enacted  in  18y<». 
is  also  invoked  to  sustain  this  claim. 

"•  All  offenses  shall  be  bailable  under  the  laws  of  Wyoming, 
by  sufficient  sureties,  except  capital  offenses,  when  the  proof 
is  evident  or  the  presumption  great.  Provided,  that  no  per- 
son shall  be  admitted  to  bail  after  an  indictment  has  been 
found  against  him  charging  a  capital  offense."  Laws  189o, 
c.  23,  §  1.  If  the  legislature  of  the  state  has  the  power  to  so 
provide  after  indictment  is  found  charging  a  capital  offense, 
then  the  statute  is  in  force,  and  would  control;  if  that  author- 
ity is  not  i)ossessed  by  our  legisla;  jre  now,  the  law  of  the  ter- 
ritory does  not  remain  of  binding  force,  because  it  is  clear  that 
the  constitutional  provision  is  self-acting,  conferring  an  abso- 
lute right,  so  far  as  it  goes;  and,  if  the  statute  is  in  force  to  its 
full  extent,  and  is  controlling,  it  would  deny  bail  to  the  de- 
fendant in  the  case  at  bar,  he  being  charged  by  indictment 
with  a  capital  offense.  May  the  legislature  so  control  the 
courts  as  to  exclude  any  consideration  of  the  actual,  evident 
character  of  the  proof,  or  the  actual  greatness  of  the  presump- 
tion of  guilt,  when  an  indictment  charging  the  offense  has  been 
found  by  a  grand  jury  ?  When  the  statute  of  1890  was  en- 
acted, our  only  mode  of  presentment  for  crime  was  by  indict- 


w 

M 


is  branch 
is  mattci'. 
tJiut  such 

s  reserved 
s  i^Tuntcd 
ws:  "Ail 
)t  for  ca);- 
sumptioii 
ties,  then, 
ul   befoic 
SOS  of  all 
st's  wJien 
'ut.     Tins 
It  is  ably 
onclusive 
f  guilt  is 
ancerned. 
I)rincii)le, 
in   180(1, 

^yominjur, 
lie  proof 
it  no  ])er- 
luis  been 
ws  1890, 
er  to  so 
1  offense, 
;  author- 

the  ter- 
lear  that 
tn  abso- 
'ce  to  its 

the  de- 
ietmeiit 
rol  the 
evident 
'esump- 
as  been 
ivas  en- 

indict- 


STATE  V.  CROCKER.  47<j 

mont  found  by  a  grand  jury.  Pursuant  to  constitutional 
autliority  since  the  admission  of  the  state  into  the  Un'on,  the 
legislature  has  authorized  prosecution  for  crime  upon  informa- 
tion tiled  by  the  prosecuting  attorney,  and  a  grand  jury  is  only 
called  upon  order  of  the  court,  and  we  know  that  in  practice 
this  is  now  done  only  in  exceptional  cases.  An  information 
filed,  charging  a  person  with  a  capital  offense,  would  not, 
either  under  the  constitution  or  statute,  preclude  the  right  to 
hail,  unless  the  proof  is  evident  or  the  jjresumption  great. 
Regardless  of  the  distinction  made  by  statute,  which  created 
no  distinction  when  adopted,  is  there  any  such  greater  sanctity 
surrounding  the  presentment  of  a  grand  jury  than  a  prosecu- 
tion by  information  ?  We  apprehend  none  such  exists,  and 
that  no  such  distinction  is  recognized  by  the  constitution  or 
laws  since  enacted,  changing  the  mode  of  prosecuting  for 
crime.  Whether  it  is  indictment  or  information,  the  prisoner 
in  each  instance  is  charged  with  the  same  crime,  and  he  enjoys 
the  same  rights  and  privileges  as  to  trial.  The  same  presump- 
tion and  protection  are  thrown  around  him  upon  the  trial. 
The  sole  purpose  subserved  by  either  is  to  bring  the  accused 
properly  to  the  bar  of  the  court  to  answer  and  stand  trial  upon 
the  accusation.  So  far  as  the  two  methods  are  concerned,  the 
accused,  in  the  event  that  he  is  charged  by  information,  is  gen- 
erally given  a  preliminary  hearing  before  a  magistrate,  when 
he  may  be  present,  be  confronted  with  the  witnesses  against 
him,  introduce  testimony  on  his  own  behalf  if  he  desires,  and 
have  the  merits  of  the  charge  presented  to  the  magistrate  by 
counsel  on  argument.  In  case  of  indictment  he  is  not  heard, 
he  is  not  confronted  by  the  witnesses  against  him,  he  is  not 
represented  by  counsel.  The  magistrate,  on  the  one  hand,  is 
chosen  by  the  j)eople  to  serve  a  term  of  years,  and  to  officiate 
in  all  such  cases.  On  the  other,  the  grand  jury  are  now  selected 
by  the  sheriff  under  an  open  venire,  who  sit  only  during  one 
term  of  court,  and  hold  secret  sessions.  True,  there  is  no  sub- 
sequent secrecy  thrown  around  the  testimony  adduced  before 
them,  under  our  laws,  as  their  subsequent  secrecy  is  disclosed 
by  their  oaths  to  be  to  keep  secret  the  counsel  of  the  state, 
their  fellows,  and  themselves.  Their  deliberations  are  secret, 
and  must  not  be  disclosed.  Neither  are  they  to  disclose  the 
fact  of  hidictment  found  until  after  arrest  of  the  accused. 
The  testimony  they  have  heard  may  be  disclosed  in  a  proper 


'^ 


11: 

if ; : 


480 


AMERICAN  CRIMINAL  REPORTS. 


1    iT 

■  • '  i '. 


'.■V 


,Jf 


■  ■      i ', 

''1 

.i'i-  ii:;:;4 

Ij'     I 

1.  .:  t)^-; 

>  f    ; 

1 

■■4i' 


mm 

:-'5|«i 


case,  if  necessary.  Under  our  system,  we  are  loath  to  bclicvo 
that  any  inherent  reason  exists  for  denying  any  riji^ht  aftir 
indictment  which  is  possessed  in  case  of  an  information.  Tlio 
grand  jury  does  not  determine,  and  are  not  clothed  with  tlio 
jiower  to  decide,  the  question  of  bail  in  any  case.  The  court 
or  judge  is  to  exercise  that  power  in  all  cases.  Necessarily 
then,  the  authority  which  fixes  the  bail,  and  who  is  to  settle 
that  matter,  must  determine  the  right  to  bail.  That  authority, 
then,  must  decide,  and  in  that  authority  alone,  resitles  the 
duty  and  right  to  decide,  as  to  whether  or  not  the  proof  is  evi- 
dent or  the  presumption  great.  Is  this  to  be  determinod  for 
the  court  in  all  capital  cases  by  a  grand  jury,  genertiUy  un- 
skilled in  the  law,  incapable  of  judging  as  to  the  materiality 
or  admissibility  of  testimony?  We  can  not  so  conclude.  Ko 
doubt  the  finding  of  an  indictment  '\%p)'i  ma  facie  evidence  that 
the  proof  is  evident  and  that  the  presumption  is  great,  and,  if 
not  so,  the  legislature  may  well  so  provide,  thus  throwing  the 
burden  of  proof  upon  the  defendant  to  establish  the  contrary. 
To  this  extent  the  statute  is  certainly  a  valid  law.  Can  the 
lawmaking  power  go  further,  and  make  any  particular  method 
of  presentment  for  crime  a  conclusive  element  in  determining 
the  right  to  bail  ?  If  it  can  assume  that  authority  in  capital 
cases,  why  not  with  the  same  propriety  and  legality  extend  it 
to  the  case  of  any  other  felony  after  indictment  ?  Does  the 
fact  that  a  question  of  proof  or  presumption  arises  in  the  one 
case  and  not  in  the  other  involve  any  distinction  upon  princi- 
ple ?  We  think  not,  if,  as  it  seems  entirely  clear  to  us,  a  con- 
stitutional right  to  bail  exists  in  either  case — in  the  one  case 
absolutely  without  proof,  in  the  other  just  as  absolutely,  if  the 
proof  is  not  evident,  or  the  presumption  not  great.  At  com- 
mon law  it  was  within  the  discretion  of  the  magistrate,  judge 
or  court  to  allow  or  deny  bail  in  all  cases,  and  was  usually  de- 
nied in  cases  of  felony  punishable  by  death.  This  has  been  so 
changed  by  the  state  constitutions  in  this  country  generally, 
as  well  as  by  our  own,  as  to  give  bail  as  a  matter  of  right 
in  those  cases  where  it  is  allowable.  This  was  even  asserted 
in  the  case  of  People  v.  Tinder,  19  Cal.  539,  although  in  that 
case  the  right  to  bail  in  a  capital  case  after  indictment  was 
denied. 

The  opinions  of  Justice  Field,  who  announced  the  decision 
of  the  court  in  Tinder's  case,  are  entitled  to  very  great  con- 


a  TATE  V.  CROCt'ER. 


481 


0  Ix'liovo 
t'lt  aftiT 
»n.    Til.. 
[with  tile 
jlie  court 
fcossarily 
to  settle 
ithority, 
jitles  tile 
[of  is  evi- 
\m'i\  for 

Irtilly  un- 
tcriality 
<le.  Ko 
nee  tliut 
',  Jind,  if 

tving-  the 
ontrary. 

Can  the 
method 

nninino' 

1  capital 

xtend  it 

>oes  the 

the  one 

princi- 

i,  a  con- 

>ne  case 

7,  if  the 

tt  com- 

,  judge 

lUy  de- 

i>een  so 

lerally, 

'  right 

iserted 

n  that 

It  was 

^cision 
t  con- 


sideration. The  course  of  his  reasoning  in  tluit  case,  however, 
is  hardly  applicable  to  our  conditions,  and  under  our  rules  of 
procedure  before  grand  juries.  Reviewing  a  similar  constitu- 
tional guaranty,  he  adverted  to  the  fact  that  mder  their  stat- 
utes an  indictment  was  more  than  a  mere  accusation;  that  the 
grand  jury  were  ex])ressly  recjuired  to  receive  "  n<jne  but  legal 
eviilenco,  and  the  best  evidence  in  degree,  to  the  exclusion 
of  hearsay  or  secondary  evidence;"  and  "that  it  is  their 
duty  to  weigh  all  the  evidence  submitted  to  them,  and,  when 
they  have  reason  to  believe  that  other  evidence  within  their 
reach  will  explain  away  the  charge,  they  should  order  such 
evidence  to  be  produced;  "  and  "ought  to  find  an  indictment 
when  all  the  evidence  before  them,  taken  together,  is  such  as, 
in  their  judgment,  would,  if  um^xplained  or  uncontradicted, 
warrant  a  conviction  by  the  trial  jury."  And  the  learned 
judge  adds:  "Such  being  the  case,  an  indictment  is  something 
more  than  a  mere  accusation  based  upon  probable  cause;  it  is 
an  accusation  based  upon  legal  testimony,  of  a  direct  and  posi- 
tive character,  and  is  the  concurring  judgment  of  at  least 
twelve  of  the  grand  jurors."  The  California  case  is  supported 
also  by  the  case  of  Ilujht  v.  If.  S.,  1  Morr.  (Iowa)  410,  and  pos- 
sibly in  one  or  two  other  states,  where  it  does  not  clearly 
ap])ear,  however,  a  constitutional  ])rovision  like  our  own  exists. 
A  contrary  view  is  held  in  Alabama,  Arkansas,  Colorado, 
Florida,  Illinois,  Indiana,  Mississippi,  Nevada,  Ohio,  South 
Carolina,  and  Texas.  In  many,  if  not.  indeed,  in  all  of  those 
states,  the  constitution  or  statutes  give  the  right  to  bail  in  lan- 
guage very  like  or  entirely  similar  to  the  provisions  of  our 
constitution.  The  doctrine  announced  in  California,  as  ai)pl:- 
cable  generally  under  such  a  constitutional  guaranty,  is  repudi- 
ated, and  the  view  is  held  that  the  indictment  furnishes  pre- 
sumptive evidence  on'y  of  the  guilt  of  the  accused,  and  does 
not  conclusively  establish  that  the  proof  is  evident  or  the  pre- 
sumption great.  The  great  weight  of  authority,  therefore, 
unquestionably  sustains  this  latter  proposition;  and  the  rea- 
soning upon  which  it  is  supported  appears  to  us  entirely  sound. 
I/i  re  Losasso,  15  Colo.  103;  Lumm  v.  State,  3  Ind.  293;  Lynch 
V.  People,  38  III.  494;  Ex  parte  Wraij,  30  Miss.  073;  Schmidt  v. 
Simmons,  (Ind.  Sup.)  137  Ind.  93;  State  v.  Summons,  19  Ohio 
139;  Ex  parte  Finlen,  20  Nev.  141;  Ex  jxirte  Bryan,  34  Ala. 
270;  Ex  parte  Banks,  28  Ala.  89;  Ex  parte  Good,  19  Ark.  410; 
81 


^;|k. 


■'J'  ' 


;■:  ' 


•4 


l' 


i 


'r 


I 


I    '^ 


'I    '  I 


,t 


1^, 


.   V 


482 


AMERICAN  CRIMINAL  REPORTS. 


Ev  parte  Kittrel,  20  Ark.  499;  Ex  parte  McAnalhj,  53  Ala. 
495;  Yarhorough  v.  State,  2  Tex.  519;  Street  v.  State,  43  Miss.  1. 
It  must  be  borne  in  mind  that  our  laws  are  intended  to  be 
framed  upon  the  humane  idea  that  no  man  is  to  be  punished 
until  he  has  been  convicted;  that  an  accused  is  only  con  lined 
in  jail  before  trial  and  conviction  to  secure  his  presence  at  the 
trial,  and,  if  convicted,  that  he  may  be  compelled  to  underifo 
sentence;  tl)at,  however,  if  by  sureties  his  presence  can  as  well 
be  secured,  it  is  deemed  wise  and  just  that  he  shall,  until  trial 
and  conviction,  be  allowed  his  liberty,  except  in  capital  otfensos, 
where  the  proof  is  evident  or  the  presumption  great,  in  which 
cases  it  is  deemed  that  the  offense  is  so  grave  it  is  not  safe  to 
allow  the  presence  of  the  accused  to  be  secured  by  bail.  If, 
then,  taking  the  constitution  alone,  an  indictment  found  Avould 
not  of  itself  preclude  the  right  to  bail  in  capital  cases,  is  the 
statute  prevailing  in  that  respect  ?  We  have  already  com- 
mented upon  this  question  to  some  extent.  This  court  held  in 
the  case  of  In  re  Boulter,  4  W^'o.  39  Pac.  875,  that  the  consti- 
tutional right  to  bail  extended  to  a  person  until  conviction, 
and  not  after.  AVe  were  then  considering  a  case  other  than 
capital.  So  far  as,  and  in  the  cases  wherein,  the  right  is  given 
by  the  constitution,  we  think  the  time  during  which  bail  is  to 
be  allowed  is  the  same  in  all  cases,  in  capital  as  well  as  other 
felonies,  the  only  difference  being  that  in  the  former  the  right 
only  exists  when  the  proof  is  not  evident,  and  the  prcsumi)tion 
not  great.  Until  conviction,  then,  under  the  constitution,  all 
persons  are  bailable,  without  exception,  in  all  felonies  other 
than  capital,  with  the  sole  exception  already  stated  in  capital 
cases.  The  statute  is  not  to  be  construed  as  merely  providing 
that  an  indictment  shall  be  conclusive  evidence  of  the  evident 
proof  or  great  presumption.  It  does  not  so  state.  That  ]r,irt 
is  contained  in  a  proviso,  which  is  preceded  by  the  provision 
similar  to  the  one  found  in  the  constitution  allowing  bail  in 
all  cases  except  capital,  where  the  proof  is  evident,  or  the  prr 
sumption  great;  but  it  adds  :  "  Provided,  that  no  person  shall 
be  admitted  to  bail  after  an  indictment  has  been  found  against 
him  charging  a  capital  offense."  This,  then,  is  an  exception  to 
the  preceding  provision  of  the  statute.  It  unquestionably 
thus  provides  that,  after  indictmgnt  found,  whatever  may  be 
the  proof,  whether  evident  or  not,  whatever  may  be  the  pre- 
sumption, whether  great  or  otherwise,  no  bail  shall  be  permitted. 


F.'A  53  Ala. 
^3  Miss.  1. 
nded  to  Ije 
|e  punished 
.V  con  final 
'fee  at  the 
o  undor^ro 
'an  as  well 
until  triid 
[il  offens(>s, 
',  in  whici) 
lot  safe  to 
'iiil.     If, 
>nd  would 
ses,  is  the 
eady  coni- 
•rt  held  in 
the  consti- 
onviction, 
>ther  than 
it  is  given 
>  bail  is  to 
11  as  other 
'  the  right 
'sumption 
ution,  all 
lies  other 
in  capital 
irovidino- 
B  evident 
'hat  ])art 
provision 
S  hail  in 
the  pre 
ion  shall 
'  against 
])tion  to 
tionably 
may  be 
the  pre- 
•mitted. 


STATE  V.  CROCKER. 


483 


This  is  the  construction  which  we  think  must  be  given  to 
tlio  statute.  It  mast  be  manifest  that  such  a  law  is  restrict- 
ive of  tlie  constitutional  right.  It  entirely  disregards,  in  case 
of  indictment,  the  only  exception  to  the  right  to  give  bail 
einl)raced  in  the  bill  of  rights.  In  our  opinion,  therefore,  the 
statute,  instead  of  attempting  to  render  a  certain  fact  conclu- 
sive evidence  of  the  proof  or  presumption  which  excludes  the 
right  to  furnish  bail,  clearly  denies  bail  under  certain  circum- 
stances stated,  in  utter  disregard  of  the  nature  or  effect  of  the 
proof  or  presumption.  To  this  extent  the  legislature  can 
not  go. 

Suppose,  however,  we  take  the  other  view,  viz.,  that  the 
statute  in  effect  but  constitutes  the  finding  of  an  indictment 
conclusive  that  the  proof  is  evident  and  the  presumption 
great.  It  is  jlearly  within  the  authority  of  the  legislature  to 
say  that  the  indictment  shall  be  taken  us  prima  facie  evidence 
of  such  facts.  We  very  sincerely  question  its  power  to  go  fur- 
ther, and  make  it  conclusive  evidence.  We  understand  the 
rule  to  be,  even  with  respect  tociv^il  rights,  that  the  legislature 
can  not  make  certain  facts  conclusive  as  evidence  (Cooley, 
Const.  Lim.  450);  and  much  less,  it  seems  to  us,  can  it  declare 
in  a  criminal  proceeding  that  a  certain  fact,  such  as  an  indict- 
ment found,  shall  be  conclusive  against  the  prisoner  when  he 
seeks  to  obtain  the  benefit  of  a  right  granted  him  by  the  con- 
stitution, and  prevent  or  entirely  [)reclude  him  from  asserting 
and  proving  the  contrary.  As  the  constitution  is  supreme, 
and  neither  the  legislature  nor  the  courts  can  disregard  it,  and 
as  the  rights  which  it  guarantees  to  the  people  were  intended 
to  be  and  should  be  upheld,  we  have,  in  view  of  this  and  all 
the  foregoing  considerations,  arrived  at  the  conclusion  that, 
notwithstanding  the  statute,  a  person  charged  with  a  capital 
offense  by  indictment  is  bailable,  unless  the  proof  Js  evident, 
or  the  presumption  great. 

A  nswering  the  questions  submitted  for  our  decision,  there- 
fore, we  say : 

To  the  first  question :  The  court  can  and  should  entertain 
an  application  for  bail  by  a  defendant,  after  indictment  found 
and  returned  by  a  grand  jury  charging  murder  in  the  first  de- 
gree, when  such  application  is  based  upon  the  fact  that  the 
proof  of  guilt  is  not  evident,  and  the  presumption  of  guilt  is 
not  great. 


:i! 


liri 


■g,. 


1  ■,) 


;5i 


II 


I 


HI 


, ',1  > 


'] 


I 


P 


y 


4S4r 


AMERICAN  CRIMINAL  REPORTS. 


To  the  second  question :  An  indiciment  is  not  conclinive 
evidence  that  the  proof  of  guilt  is  evident,  or  the  presum])tion 
great,  in  an  application  for  bail  in  a  capital  case.  It  is,  how- 
ever, prima  facie  evidence  thereof. 

To  the  third,  fourth  and  fifth  questions:  In  so  far  as  cliap- 
ter  33  of  the  Session  Laws  of  1S90  attempts  to  forbid  hail 
after  an  indictment,  regardless  of  whether  or  not  the  proof  is 
otherwise  evident,  or  the  ])resumption  of  guilt  otherwise  great. 
it  is  in  conflict  with  section  14  of  article  1  of  the  constitution; 
and  in  such  case,  as  stated  in  the  fifth  question,  if,  upon  a 
proper  hearing  and  sufficient  showing,  it  appears  that  the 
proof  is  not  evident,  or  the  presumption  not  great,  under  the 
rules  hereinafter  stated  the  accused  should  be  admitted  to  hail 
in  such  sum  as,  considering  the  gravity  of  the  offense  charged, 
will,  in  the  judgment  of  the  court  or  judge,  procure  his 
attendance  and  presence  for  trial. 

The  sixth  question  must  be  answered,  under  our  conclusions 
stated  in  this  ojnnion,  in  the  attirmative,  if,  upon  a  hearing, 
the  court  concludes  that  the  proof  is  not  evident,  and  the  pre- 
sumption is  not  great. 

To  the  seventh  question :  Upon  the  facts  therein  stated,  wo 
give  an  affirmative  answer. 

To  the  eighth  question  :  The  burden  of  proof  is  upon  the 
defendant,  and  both  parties  are  entitled  to  compulsory  process 
to  secure  the  attendance  of  witnesses.  The  method  of  pro- 
cedure will  readily  suggest  itself  to  the  court,  under  the  prin- 
ciples announced  in  this  opinion. 

To  the  ninth  and  tenth  questions:  'No;  the  inquiry  should 
not  be  limited  to  determining  the  probable  degree  of  the  hom- 
icide. Such  inquiry  may,  and  ])ro])erly  siiould,  include  tlie 
determination  of  the  evident  character  of  the  ])roof,  or  the 
strength  of  the  presumjition,  respecting  whether  or  not  the 
ilefendant  did  the  killing,  or  was  connected  with  it  as  a  guilty 
agent. 

We  think  that  the  best  rule  in  ultimately  determining 
whether  the  prisoner  should  be  admitted  to  bail  or  not  is,  that 
bail  should  bo  refused  in  all  cases  where  a  judge  Avould  sustain 
a  conviction  for  murder  in  the  first  degree,  if  j)ronounced  by  a 
jury  on  such  evidence  of  guilt  as  is  exhibited  on  the  hearing 
for  bail,  and  where  the  evidence  is  of  less  elticac}'^  to  admit  to 
bail.     In  addition,  it  should  be  said,  the  indictment,  while  not 


m 


concliisiive 

resumption 

It  is,  how- 

[ar  as  cli!i|)- 
orbiil  l)ai| 
le  proof  is 
wise^nvjit. 
nstitutioii; 
if,  upon  a 
that  the 
un<ler  tiic 
ted  to  hail 
«  char^^cd, 
i-ocure  Jiis 


onclusions 
a  heariiiir. 

lu  the  pre- 

stated,  Wo 

"pon  the 
fv  process 
>tl  of  pro- 
'  the  prin- 

ry  should 

the  Jioni- 

ilude  the 

'f,  or  the 

not  the 

a  guilty 

'nnininfr 
t  is,  that 
I  sustain 
eed  by  a 
hearini!' 
dm  it  to 
hile  not 


STATE  V.  CROCKER. 


485 


of  itself  conclusive  against  the  right  to  bail,  may  be  taken  into 
consideration  by  the  court,  together  with  the  evidence,  in  de- 
termining the  question  of  admission  to  bail.  It  may,  in  a 
doubtful  case,  have  the  effect  of  turning  the  scale.  It  should 
not  be  entirely  ignored,  but  it  is  a  circumstance,  like  any  other, 
to  be  taken  into  consideration  for  whatever  effect,  in  tlie  light 
of  the  other  facts,  and,  together  with  them,  it  may  have  upon 
the  mind  of  the  court  or  judge. 

GuoESBECK,  C.  J.,  and  Coxaway,  J.,  concur. 

Note. — Right  to  hail — Presence  of  relator, — On  an  application  of  a  party 
indic'tt'd  for  murder  to  be  released  on  bail,  there  is  no  necessity,  unless  he 
iusks  that  he  be  brought  before  the  court,  for  the  accused  to  be  personally 
jni'scnt,  as  the  legality  of  his  detention  is  not  called  in  question.  Ex  parte 
Vivkens,  47  La,  Ann.  GG3;  Church,  Hab.  Corp.,  T[  389q.  As  to  tlie  effect 
upon  a  right  to  bail  of  a  mistrial,  in  a  cai-e  where  the  accused  had  escaped 
and  been  recaptured,  and  the  effect  of  tiiat  fact,  when  supplemented  by  the 
fact  that  his  cause  has  been  continued  for  five  months,  an  examination  of 
tlie  authorities  bearing  upon  the  (juestion,  leads  to  the  conclusion  that  the 
fact  of  a  mistrial  having  taken  place  has  not  the  force  to  entitle  the  relator 
to  bail.  Church  on  Habeas  Corpus  (paragraphs  402,  40!!)  thus  refers  to  the 
matter:  "  A  mistrial,  because  of  a  disagreement  of  the  jury  as  to  a  ci.,,..al 
offense,  does  not  establish  per  se  that  the  proof  is  not  evident,  and  that  the  ac- 
cused is  entitled  to  bail,"  citing  Ex  parte  Smith,  23  Tex.  App.  100,  127;  State 
V.  Summons,  19  Ohio  139;  Ex  parte  Pattison,  56  Miss.  IGl,  as  explained  in 
Ex  parte  Hamilton,  65  Miss.  98,  143.  "  One,  or  even  two  mistrials  will  not 
furnish  the  accused  the  absolute  right  to  give  bail;  but  where  tliere  has 
been  one  mistrial  under  favorable  circumstances  for  the  prosecution,  and 
tlie  conduct  of  the  accused  prior  and  subsequent  thereto  shows  to  the  satis- 
faction of  the  court  that  he  has  not  and  never  had  any  thought  of  avoiding 
trial,  and  the  evidence  as  preserved  upon  the  trial  is  conflicting  as  to  his 
guilt  of  the  charge,  he  may  properly  be  admitted  to  bail."  From  this  it 
would  appear  that  a  mistrial,  coupled  with  other  circumstances,  furnishes 
simply  proper  matter  for  the  court  to  consider  in  exercising  its  discretion  as 
to  whether  or  not  it  will  admit  to  bail.  Ex  parte  Gouiis,  99  Mo.  193;  People 
V.  Tinder,  19  Cal.  539. 

In  so  far  as  the  application  to  bail  is  based  upon  the  fact  that  the  trial  of 
the  accused  has  been  postponed,  it  rests  very  greatly  in  the  discretion  of  the 
court.  The  fact  is  one  of  those  matters,  "  independent  of  the  merits  of  the 
prosecution,"  which  Cluirch  refers  to,  in  the  consideration  of  which  the 
conduct  of  the  party  plays  an  important  part.  The  object  of  imprisonment 
is  to  secure  a  trial,  and  tlie  escape  of  a  prisoner  weighs  against  him  when, 
under  the  circumstances  in  which  relief  is  asked,  relief  is  merely  of  grace, 
and  not  of  absolute  right. 

One  under  indictment  for  murder,  is  not  entitled  to  bail  when  the  proof  is 
evident  or  the  presumption  is  strong.  Under  this  rule,  the  burden  rests 
ujwn  the  applicant  for  bail  to  show  by  the  evidence  that  the  proof  is  not 


ill 


"  '■     f 


I  V 


\   , 


I! 


isL..  L 


^SQ 


AMERICAN  CRIMINAL  REPORTS. 


evident,  and  that  the  presumption  la  not  strong.    Ex  parte  Richards,  103 
Ind.  20t. 

When  a  p^^rson  charRed  with  a  capital  offense  has  once  been  admitted  to 
bail  after  indictment  found,  he  shall  not  be  subject  to  be  again  placed  in 
custody  for  the  same  offense,  except  on  surrender  by  his  sureties,  wlietlier 
the  bail  be  granted  on  the  facts,  or  on  account  of  ill  health.  In  other  wor(l>:, 
when  bail  is  once  granted  after  indictment  found,  it  is  beyond  the  powfr  of 
the  state  to  re-arrest  for  that  offense;  the  right  of  bail  being  res  adjudicufa. 
This  proposition  is  fully  sustained  by  the  authorities.  Wells,  Res.  Adj., 
§  421;  Church,  Hab.  Corp.,  386;  Jilz's  Case,  64  Mo.  205. 

Many  of  the  states  provide  by  statute  that  where  a  person  once  dischar^n  il 
or  admitted  to  bail,  is  afterward  indicted  for  the  same  offense  for  wliidi 
he  has  been  once  arrested,  he  may  be  committed  on  the  indictment,  but 
shall  be  again  entitled  to  the  writ  of  habeas  corpus,  and  may,  notwitlistand- 
ing  the  indictment,  be  admitted  to  bail,  if  the  facts  of  the  case  render  it 
jjroper;  but  in  cases  where,  after  indictment  found,  the  cause  of  the  defend- 
ant has  been  investi,!?ated  on  habeas  corpus,  and  an  order  made  eitlicr 
remanding  him  to  cusody,  or  admitting  him  to  bail,  he  shall  neither  be 
subject  to  be  again  placed  in  custody,  unless  when  surrendered  by  his  bail, 
or  when  the  trial  of  his  cause  commences  before  a  petit  jury,  nor  shall  he 
be  again  entitled  to  tlio  writ  of  habeas  corpus,  except  in  cases  where  tlio 
health  of  the  accused  is  of  such  a  nature  as  to  endanger  his  life  by  furtlier 
confinement;  or  where,  subsequent  to  the  first  application,  important  tes- 
timony has  been  obtained,  wliich  was  not  within  the  power  of  the  applicant 
to  produce  at  the  former  hearing.  These  provisions  are  enacted  lor  tlie 
benefit  of  the  accused,  and  can  only  be  invoked  in  his  behalf.  The  state  is 
not  entitled  to  a  new  trial,  and  is  debaived  the  right  of  apper.I.  as  a  rule,  by 
its  constitution,  and  there  is  no  way  by  which  the  state  can  vacate  a  jmiK- 
ment,  and  retry  the  accused  of  its  own  right.  A  judgment  granting  bail  is 
final,  as  to  the  state,  and  even  to  the  accused,  unless  he  should  seek  to 
reduce  the  amount  of  bail  granted,  by  appeal  or  otherwise.  Augustine  v. 
State,  33  Tex.  Cr.  App.  1. 

A  fugitive  from  justice,  under  arrest  for  an  offense  against  the  law  of 
the  state  of  asylum,  and  for  extradition  under  an  executive  warrant,  is  not 
entitled  to  bail  pending  the  determination  of  the  offense,  even  though  such 
offense  is  bailable.     Hobbs  v.  State,  33  Tex.  Cr.  App.  313. 

Forfeiture. — The  sufficiency  of  an  indictment  can  not  be  inquired  into  in 
a  proceeding  on  a  set  re /acm,s  to  enforce  forfeiture  of  a  recognizance  after  it 
has  been  passed  upon  and  held  to  be  sufficient  by  a  court  of  last  resort. 
State  V.  Morgan,  124  Mo.  467. 

A  surety's  liability  on  the  forfeiture  of  an  appearance  bond  in  a  criminal 
case  is  not  measured  by  the  penalty  in  the  bond  so  as  to  relieve  him  from  lia- 
bility for  costs  accruing  in  the  action  on  the  bond.  State  v.  Be  be  (Iowa), 
54  N.  W.  479.  In  an  action  against  the  sureties  for  failure  of  their  princii)al 
to  comply  with  the  conditions  of  the  recognizance,  the  insufficiency  of  the 
indictment  does  not  constitute  a  defense.  Where  the  recognizance  pro- 
vides that  the  principal  "  if  convicted,  shall  render  himself  in  execution 
thereof,"  the  condition  is  not  fulfilled  by  the  appearance  of  the  principal  and 
his  conviction  when  he  subsequently  disappears.  Com,  v.  Turpiu  (Ky.), 
82  S.  W.  133,  96  Ky.  — 

Validity. — A  recognizance  given  to  answer  an  indictment  wliich  is  fatally 


ilchards,  103 

admitted  t<, 
lain  placed  in 
Ities,  wJifthor 
I  other  words, 

I  the  power  of 
P  adjudivuta. 
Is,  Res.  Adj., 

e  discharjjod 
|8e  for  wliicli 

ictment,  hut 
lotwitlistaiid- 
ase  render  it 
if  thedt'ftnd- 
made  eitlier 

II  neitluT  be 
J  by  his  bail, 

nor  shall  he 
es  where  the 
e  by  further 
1  porta  nt  tes- 
he  api)licaiit 
leted  tor  the 
The  state  is 
as  a  rule,  by 
cate  a  judfr- 
mting  bail  is 
mid  seek  to 
Augustine  v. 

t  the  law  of 
•rant,  is  not 
hough  such 

ired  into  in 
nee  after  it 
last  resort. 

a  criminal 
n  from  lia- 
be  (Iowa), 
ir  princii)al 
ncyof  the 
ance  pro- 
execution 
ncipal  and 
piw  (Ky.), 

I  is  fatally 


STATE  EX  REL.  v.  WOLFER. 


487 


defective  can  not  be  avoided  on  that  ground,  where  it  contains  a  clause 
reciuiring  the  person  indicted  to  appear  at  the  time  specified,  and  not  depart 
tlie  court  without  leave.     State  v.  Livingston,  58  Mo.  App.  445. 

A  recognizance  is  not  invalidated  because  approved  by  the  clerk  without 
appearance  by  the  sureties  before  the  court  or  judge,  where  the  judge 
decides  the  offense  is  bailable,  and  fixes  the  amount  of  the  bond,  and  orders 
tlie  clerk  to  approve  it  when  signed  by  two  sureties.  Hunt  V.  United  States, 
11  C.  C.  A.  340. 


State  ex  kel.  O'Connor  v.  "Wolfer. 

(53  Minn.  135.) 

Recommitment  to  Prison;  Pardon  of  convict— Violation  of  conditions — 
Remand  for  original  punishment, 

1.  A  convict  who  has  received  and  accepted  a  condition.al  pardon  can  not 

be  arrested  and  remanded  to  suffer  his  original  punishment  because  of 
an  alleged  non-performance  of  tlie  condition,  upon  the  mere  order  of  the 
governor.  He  is  entitled  to  a  hearing  before  the  court  in  which  he  was 
convicted,  or  some  superior  court  of  criminal  jurisdiction,  and  an 
opportunity  to  show  that  he  has  performed  the  condition  of  his  pardon, 
or  that  he  has  a  legal  excuse  for  not  having  done  so. 

2.  On  such  hearing  the  court  may,  in  its  discretion,  if  in  doubt  as  to  the 

facts,  take  the  verdict  of  a  jury,  but  the  party  is  not  entitled  to  a  jury 
trial  as  a  matter  of  right,  except  upon  the  question  whether  he  is  the 
same  person  who  was  convicted,  if  he  pleads  that  he  is  not. 

Petition  for  a  writ  of  habeas  corpus  to  procure  the  dis- 
charge of  relator  from  the  custody  of  defenthint  to  which 
he  was  alleged  to  have  been  illegally  committed  in  violation 
of  the  terms  of  a  pardon  which  had  been  granted  to  him  by  the 
governor. 

//.  II.  Gillen  and  J.  C.  Hathaicay,iov  relator. 
//.  ir.    Childs,   Attorney-General,  and    Geo.  B.  Edgerton, 
Assistant  Attorney-General,  for  respondent. 

Mitch  KM-,  J.  As  the  respondent  traversed  none  of  the 
relator's  al legations  of  fact,  the  petition  for  the  writ  must,  for 
the  purposes  of  this  hearing,  be  taken  as  true.  Therefore  no 
statement  of  facts  other  than  a  reference  to  this  petition  is 


'  -^Ij 

.1 

'  1 

;  t 
t 

1  ■ 
■   1 

■'■■      ,    'h 

:tJi; 


mm 


T   IM 

i''"  it/ J ' 

,5'    'J'  ?  ] 


4S8 


AMERICAN  CRIMINAL  REPORTS. 


necessary.  That  the  pardon  granted  to  the  relator  was  condi- 
tional, and  that  the  condition  was  a  valid  one,  can  not  admit 
of  doubt.  The  power  to  grant  conditional  i)ardons  is  conceded. 
The  statute  (Gen.  St.  1878,  c.  Ill)),  which  is  but  declaratorv  of 
the  common  law,  expressly  so  provides.  A  pardon  bein"- 
wholly  a  matter  of  mercy,  the  governor  may  impose  any  con- 
dition that  he  pleases,  at  least  provided  it  is  neither  iminoial, 
iv  '»r,ssible  nor  illegal.  The  condition  in  this  case,  to  wit,  that 
t«  J  risoner  "  take  up  his  residence  out  of  the  state,  and  main- 
V  1  :i  0  same  outside  of  the  state  during  the  balance  of  his 
life,"  >\as  neither  immoral,  impossible  nor  illegal.  The  fact 
tljat  this  co'Mlition  precedes  the  operative  part  of  the  ])ar<!oii, 
whicJi,  if  taken  by  itself,  would  be  unconditional,  is  unimjxtr- 
tant.  Taking  the  whole  instrument  together,  it  is  perfectly 
evident  that  the  intention  was  that  the  pardon  should  be  sub- 
ject to  this  condition.  It  appears  that  about  a  week  after  the 
pardon  had  been  issued,  and  t!ie  relator  discharged,  the  gov- 
ernor, -\  ithout  giving  him  any  opportunity  to  be  heard,  issued 
his  order  to  tlie  warden  of  the  penitentiary  by  which,  after 
assuming  to  recite  the  condition  of  the  pardon  and  the  non-per- 
formance of  it  by  the  relator,  he  declared  the  pardon  null  and 
void,  and  directed  the  warden  to  arrest  the  relator,  and  return 
him  to  the  state  prison,  to  be  there  kept  in  confinement,  in 
accordance  with  the  judgment  of  the  court  before  which  he  had 
been  convicted;  that  upon  the  authority  of  tiiis  order  alone  tho 
relator  was  shortly  afterward  arrested,  and  Avithout  any  trial 
or  hearing,  in  court  or  otherwise,  and  without  being  given  any 
opportunity  to  be  heai'd  as  to  whether  he  had  violated  the  con- 
ditions of  his  pardon,  was  returned  to  the  state  prison,  where 
he  is  still  confined. 

The  main  question,  and  the  one  which  presents  itself  at  the 
threshold  of  this  case  is,  whether  a  person  who  has  been  dis- 
charged  on  a  conditional  pardon  can  be  recommitted  to  the 
state  prison  without  any  hearing  or  adjudication,  upon  the 
mere  order  of  the  governor,  who  has  assumed  to  determine  <>x 
parte  that  the  condition  of  the  pardon  has  not  been  pertui  iii<  d. 
It  seems  to  us  that  such  a  course  is  warranted  neither  by  law 
nor  by  a  just  regard  for  the  personal  liberty  of  the  citizen.  It 
is,  of  course,  well  settled  that  if  a  person  be  pardoned  u])on  a 
condition,  either  precedent  or  subsequent,  which  he  negUcts  to 
perform,  the  pardon  is  void,  and  he  may  be  remanded  to  sutler 


as  Condi- 
'Ot  admit 
conceded, 
iratoi'v  of 
on   boin<p 
any  con- 
inunoi-al, 
wit,  that 
ind  niaiii- 
ice  of  liis 
The  fact 
3  J'ai'doii, 
uniinpor- 
perfectly 
I  be  sub- 
after  the 
tlie  gov- 
'<!,  issued 
ch,  after 
non-j)('r- 
null  and 
i<l  retuin 
nient,  in 
li  he  had 
ilone  the 
mj  trial 
ivenany 
tlie  con- 
1}  wljere 

f  at  the 
}en  (lis- 
to  tho 
'on  the 
nine  f'x 

OIIIKcl. 

by  Ja  \v 
;n.  It 
i|)on  a 
tots  to 
suffer 


STATE  EX  REL.  v.  WOLFER. 


489 


his  orif^inal  sentence,  but  upon  the  question  whether  he  has 
neglected  to  perform  the  condition,  and  is  therefore  liable  to 
be  thus  remanded,  he  is  entitled  to  a  hearint^  and  adjudication. 
Asa  pardon  is  wholly  a  matter  of  mercy,  we  are  not  pre})ared  to 
hold  that  the  le;^islature  may  not  provide  that  in  case  of  a  con- 
ditional pardon  the  governor  may,  even  without  giving  the  per- 
son an  opportunity  to  be  heard,  determine  whether  the  condi- 
tion has  been  violated,  and,  if  he  determines  that  it  has,  remand 
hiin  to  the  state  prison,  and  it  may  bo  that,  even  in  tiie  absence 
of  any  statute,  the  governor  would  have  the  right  to  insert 
such  a  provision  or  condition  in  the  pardon  itself,  for  it  might 
well  be  argued  that  the  statute  in  the  one  case,  and  the  express 
provision  of  the  instrument  itself  in  the  other,  constituted  a 
condition  to  which  the  prisoner  voluntarily  subjected  himself 
by  the  acceptance  of  the  pardon.  See  Kenmdifs  Cose,  135 
Mass.  48,  and  Arthur  v.  Craiy.  48  Iowa  264.  But  the  pardon 
in  this  case  contained  no  such  condition,  and  our  statute  is 
entirely  silent  as  to  the  mode  of  procedure.  The  ])rocedure, 
therefore,  in  such  cases,  is  governed  by  the  rules  of  the  Qom- 
mon  law.  We  have  carefully  examined  all  the  cases  within 
our  reach,  both  English  and  American,  and  find  that  except 
where  otherwise  provided  by  statute,  as  in  Massachusetts,  the 
uniform  practice  from  the  earliest  date  has  been  that,  upon 
complaint  that  the  person  has  not  performed  the  condition  of 
his  pardon,  a  warrant  is  issued,  ujmn  Avhich  he  is  arrested,  and 
committed  to  jail  until  he  can  bo  brought  before  the  court  for 
a  hearing;  that  then  upon  an  order,  rule  or  some  such  pro- 
cess (the  precise  form  of  which  is  not  very  material),  issued  by 
the  court  in  which  he  was  convicted  (or  some  superior  court  of 
criminal  jurisdiction),  he  is  brought  before  the  court  to  show 
cause  why  execution  should  not  be  awarded  agjiinst  him  on  his 
original  sentence.  The  record  of  his  conviction  is  then  ])ro- 
duced.  The  first  thing  is  that  it  must  appear  that  he  is  the 
same  person.  If  he  pleads  that  he  is  not,  a  venire  to  try  that 
fact  is  awarded.  If  the  jury  find,  or  if  he  confess,  that  he  is 
the  same  person,  then  there  may  be  other  questions,  according 
to  the  nature  of  the  condition  of  the  pardon,  for  the  considera- 
tion of  the  court,  as,  for  example,  in  this  case,  whether  the 
prisoner  had  had  a  reasonable  time  within  which  to  remove 
from  the  state,  or  whether  he  had  been  necessarily  delayed  in 
doin<r  so  bv  reason  of  the  sickness  of  his  wife. 


!■ 

■i;'! 


!  ■  V. 


*  ■    ! 


■'"h! 


490 


AMERICAN  CRIMINAL  REPORTS. 


J,  .*i"  M 

mm 


1^:- 


. ill  •,  I, 


On  all  such  ami  similar  matters  touching  the  question 
whether  he  had  failed  to  ])erforra  the  condition  of  his  pardon 
the  prisoner  is  entitled  to  be  heard,  just  as  he  \va8  entitled  to 
be  heard  why  sentence  should  not  be  passed  on  him  when  he 
was  originally  brought  before  the  b<irof  the  court  for  sentence 
after  verdict.  It  is  competent  for  the  prisoner  in  such  cases 
to  i)resent  any  facts  constituting  an  excuse  for  non-perform- 
ance of  the  strict  terms  of  the  condition,  as,  for  example,  ex- 
treme poverty  or  sickness;  and,  if  the  court  is  of  the  opinion 
that  such  impediments  amount  to  a  hiwful  excuse,  he  should 
be  discharged.  Alakhs'  Case,  I  Leach  Cr.  Cas.  390;  Thorp'" a 
Case,  Id.  390,  note.  If  the  court  is  in  doubt  in  regard  to  the 
facts  which  rest  hi  pais,  it  has  been  sometimes  the  practice  to 
take  the  verdict  of  a  jury.  This  was  done  in  Thotpe's  Case, 
supra.  But,  while  we  have  no  doubt  of  the  right  of  the  court 
to  do  this,  we  are  of  opinion  that  the  prisoner  is  not  entithd 
to  the  verdict  of  the  jury  as  a  matter  of  right.  According  to 
the  course  of  the  common-law  practice  the  only  issue  that 
must  be  tried  by  a  jury  is  whether  the  prisoner  is  the  same 
person  who  was  convicted.  The  reason  for  this  is  that  other- 
wise a  person  might  be  remanded  to  suifer  punishment  who 
has  never  been  tried  by  a  jury.  But,  if  it  be  found  or  admit- 
ted that  the  prisoner  is  the  same  person,  no  other  or  greater 
formalities  are  required  in  reiterating  the  sentence  and  return- 
ing him  to  imprisonment  under  it,  than  were  required  when 
he  was  brought  up  for  original  sentence. 

The  contention  of  relator's  counsel,  based  principally  upon 
the  authority  of  People  v.  Moore,  62  Mich.  496,  that  a  ])ar- 
doned  convict,  charged  with  having  violated  the  conditions  of 
his  pardon,  must  be  arrested  and  tried  in  the  same  manner — 
that  is,  upon  an  indictment  and  by  a  jury — as  other  offenders 
against  the  law,  is,  in  our  judgment,  not  only  contrary  to  the 
course  of  the  common  law  from  the  earliest  times,  but  pro- 
ceeds upon  an  entirely  erroneous  theory  as  to  the  status  of  a 
person  released  upon  a  conditional  pardon,  and  as  to  the  nature 
of  proceedings  to  remand  him  to  imprisonment  upon  non-per- 
formance of  its  conditions.  If  the  violation  of  the  conditions 
was  a  crime,  as  it  is  in  certain  cases  in  some  jurisdictions,  and 
if  the  person  was  charged  with  that  crime,  of  course  he  would 
have  to  be  tried  in  the  same  manner  as  those  charijed  withanv 
other  offense;  and,  if  a  second  or  new  convictiou  of  the  original 


riT' 


^^IPl^ 


STATE  EX  REL.  v.  WOLFEa 


491 


question 

IS  pardon 
entitled  to 

when  he 
T sentence 
luch  cases 
i-perforni- 
Eimple,  ex- 
le  opinion 
|ie  shonld 

Thorp,'' ti 
■rtl  to  the 
'mctice  to 

the  court 
t  entithnl 
or(lin;;>-  to 
ssue  that 
the  same 
lat  other- 
nent  who 
3r  adniit- 
r  greater 
d  return- 
fed  when 

dly  upon 
t  a  j)ar- 
itions  of 
lanner — 
)tfenders 
y  to  the 
hut  pro- 
tus  of  a 
B  nature 
tion-per- 
editions 
>ns,  and 
3  would 
ith  any 
)riginal 


offense  was  necessary,  the  same  thing  would  be  true.  But  the 
non-|)erformance  of  the  condition  of  a  pardon  is  not  an  offense. 
Neither  is  there  any  second  trial  and  conviction  of  the  prisoner 
for  the  original  offense.  He  had  been  already  tried  and  con- 
victed of  the  crime  of  which  he  was  conditionally  pardoned, 
and,  if  he  violates  the  condition,  the  pardon  is  altogether  void, 
and  he  is  remanded  to  suffer  his  original,  and  not  a  new,  sen- 
tence for  the  crime  (and  not  some  other)  of  which  he  had  been 
already  convicted.  Without  multiplying  authorities  we  merely 
refer,  in  support  of  our  views,  to  People  v.  Potter,  1  Parker, 
Crim.  K.  47,  where  the  earlier  cases,  both  English  and  Ameri- 
can, are  quite  extensively  cited  and  commented  upon. 

Counsel,  however,  makes  the  point  that  upon  relator's  own 
showing  in  his  petition  he  had  violated  the  condition  of  his 
pardon,  and  therefore,  even  if  the  means  by  Avhich  he  was  re- 
turned to  the  state  prison  were  unlawful,  still  he  ought  to  be 
remanded  to  the  custody  of  the  warden.  AVe  are  not  prepared 
to  say  that,  where  a  person,  who  has  been  thus  returned  to 
prison  in  an  Illegal  manner,  sues  out  a  writ  of  habeas  corpus 
before  a  court  of  competent  originalcriminal  jurisdiction,  such 
court  may  not,  on  the  return  to  the  writ,  hear  and  determine 
the  question  whether  the  condition  of  the  pardon  had  been 
performed,  and,  if  the  fact  be  adjudicated  adversely  to  the  pris- 
oner, remand  him  to  suffer  his  original  sentence.  But  this  is 
not  a  court  of  original  criminal  jurisdiction,  and  will  not  enter 
into  the  consideration  of  any  such  questions,  but  Avill  merely 
inquire  whether  the  relator's  present  detention  is  by  authority 
of  law,  and,  if  it  is  not,  order  his  discharge.  Of  course,  such 
discharge  is  no  bar  to  the  institution  of  further  proceedings  in 
behalf  of  the  state  in  the  proper  court,  in  the  manner  already 
indicated,  to  have  the  party  remanded  to  prison.  We  will  also 
add  that  we  do  not  think  that  it  necessarily  follows,  by  any 
means,  from  the  allegations  of  relator's  petition,  that  he  had 
failed  to  perform  the  condition  of  his  pardon.  The  governor's 
order  recites  that  the  condition  was,  that  he  should  immedi- 
ately leave  the  state.  This  is  incorrect.  It  was  that  he  should 
"  take  up  his  residence  out  of  the  state,"  etc.  No  time  being 
specified,  he  had  what  would  be,  under  all  the  circumstances, 
a  reasonable  time.  We  do  not  care  to  enter  into  any  extended 
discussion  of  the  facts,  but  we  suggest  that  it  appears  that  he 
had  a  family  in  a  distant  part  of  the  state;  also  that  one  of  the 


I :( 


W\ 


m 


IM 


•1 


.'  ■ti 


i  . 


Vim 


1     |i"      f*!! 


'J*    if} 


IWi- 


*i 


492 


AMERICAN  CRIMINAL  REPORTS. 


expressed  reasons  for  granting  the  pardon  was,  that  he  mi<ilit 
care  for  liis  family,  who,  it  must  have  been  expected,  would 
either  accompany  or  sliortly  follow  him  to  his  new  residciK  c; 
also  that  he  had  some  property  to  be  disposed  of;  further,  tluii 
while  he  and  his  family  were  preparing  to  leave  the  state,  ami 
were  about  ready  to  start,  his  wife  was  suddenly  taken  daii<^('r- 
ously  ill,  which  further  delayed  his  intended  departure.  In 
view  of  all  these  facts,  it  is  at  least  an  open  question  whetlici- 
more  than  a  reasonable  time  for  leaving  the  state  had  ehipscd, 
and  if  so,  whether  he  had  a  lawful  excuse  for  not  leaviig 
sooner.  It  is  ordered  that  the  relator  bo  discharged  from 
custody. 

Vanderburoh,  J.,  absent,  took  no  part. 

Note. — Power  to  pai'don. — In  a  majority  of  the  states,  the  pardoning 
power  is  by  their  constitutions  expressly  lotlged  with  the  governor,  and 
with  it  tlie  co-ordinate  branches  of  government  have  nothing  to  do,  exet'iit 
as  the  legislature  may  by  law  provide  how  applications  may  be  made,  and 
is  entitled  to  a  report  of  action  taken.  People  v.  Cumminga,  88  Mich.  "51; 
Ex  parte  Welh,  18  How,  307;  Ex  parte  Garland,  4  Wall.  333.  The  po\  cr 
conferred  by  the  constitution  is  practically  unrestricted,  and  the  exercise 
of  executive  clemency  is  a  matter  of  discretion,  subject,  perhaps,  to  the 
remedy  by  impeachment  in  case  of  flagrant  abuse.  It  can  not,  however, 
be  treated  as  a  privilege.  It  is  as  mucli  an  official  duty  as  any  other  act. 
It  is  lodged  in  the  governor,  not  for  the  benefit  of  the  convict  only,  but  for 
the  welfare  of  the  people,  who  may  properly  insist  upon  the  performance 
of  that  duty  by  him,  if  a  pardon  is  to  be  granted.  "  A  pardon  is  an  act  of 
grace,  proceeding  from  the  power  intrusted  with  the  execution  of  the  laws, 
which  exempts  the  individual  on  whom  it  is  bestowed  from  the  punishment 
the  law  inflicts  for  a  crime  he  has  committed.  It  is  the  private,  though 
official,  act  of  the  executive  magistrate,  delivered  to  the  individual  f<.r 
whose  benefit  it  is  intended."  Opinion  of  Chief  Justice  Mi^rshall  in  U.  S.  v. 
Wilson,  T  Pet.  160.  Lord  Coke  defines  "pardon  "as  "a  work  of  mercy, 
whereby  the  king,  either  before  or  after  conviction,  forgiveth  any  offense," 
etc.    3  Inst.  233.    See,  also,  1  Bish.  Cr.  Law,  §  898, 

In  several  states  the  power  of  the  go"p;nor  is  restricted,  although  in  no 
instance,  with  the  exception  of  the  state  of  Michigan,  has  a  board  of 
pardons  been  created  by  statute,  but  invariably  by  constitutional  pro- 
visions. 

In  Florida,  pardons  may  be  granted  by  the  governor,  justices  of  the 
supreme  court,  or  a  major  part  of  them,  provided  that  the  governor  be  one. 
Const.  Fla.  art.  6,  §  12.  In  Louisiana,  the  governor  may  act  by  and  with 
the  consent  of  the  senate.  Const.  La.  1868,  tit.  3.  In  Maine,  after  convic- 
tion, the  governor  may  pardon,  with  the  advice  of  a  council  of  seven  mem- 
Iters  chosen  by  the  general  assembly.  Const.  Me.  art.  5,  §  11.  In 
Massachusetts,  the  governor  and  a  council  of  nine  chosen  by  the  legislature 
may  grant  pardons.    Const.  Mass.  c.  2,  §  1,  art.  8.    In  Nevada,  the  governor, 


STATE  EX  REL.  v.  WOLFER. 


493 


he  nii<-||f 
,  would 


'osidencc; 

tlier,  tlijii 

itate,  and 

n  (laMM(.).. 

ture.     In 

whetlior 

elapsed, 

leavir<r 

fed  fj'om 


pardoning 
I'lnor,  jind 
do,  except 
niade,  and 
iMich.  "51; 
rjie  ]xn  cr 
e  exercHf 
'Ps,  to  tlie 
,  however, 
other  act. 
ly,  but  for 
rforniance 
I  an  at't  of 
tlie  laws, 
inishnient 
«,  thoiij;h 
idual  f(,r 
n  U.  S.  V. 
f  mercy, 
offense," 

Rh  in  no 
board  of 
nal   pro- 

I  of  the 
■  be  one. 
nd  witli 
convic- 
n  nieni- 
11.  In 
islature 
vernor, 


iiisticps  of  the  supreme  court,  and  the  attorney-Ren eral  constitute  the  board. 
Thi'  );overnor  must  concur.  Const.  Nev.  1804,  art.  5,  $5  14.  In  New 
IIiiiii|)shire,  the  governor  acts,  with  the  advice  of  a  council  of  five  elected 
by  tlie  people.  Const.  N.  H.  art.  51.  In  New  Jersey,  the  governor,  chun- 
cillor,  and  six  judges  of  tlie  court  of  error  constitute  the  board.  The 
giivcrnor  must  act.  Const.  N.  J.  art.  5,  §  10,  In  Pennsylvania,  the 
governor,  lieutenant  governor,  secretary  of  state,  attorney  general,  and 
EGL-retary  of  int  .'rior  affairs  constitute  the  board.  Any  three  may  act.  Const. 
Ta.  1873,  art.  4,  JJ  0.  In  Vermont,  the  governor  and  a  council  consisting  of 
li  'iitcnant  governor  antl  twelve  councilmen,  to  be  elected  by  the  people, 
exercise  tlie  pardoning  iMjwer.     Const.  Vt.  1793. 

Conditional  ptrdmi^. — Tiie  valiility  of  conditional  pardons  has  bt'en 
maintained  in  Englimd  from  the  first.  Onilliam'H  Cani',  cited  by  Coke 
from  Rolls  of  8  Hen. VI.  Coke  Litt.  274  B;  Re.v  v.  Miller,  1  Leach  C.  C.  74;  3 
H.  Bl.  797;  Reg.  v.  FoJ-worlliy,  7  Mod.  153.  It  also  has  become  the  settled 
law  in  the  United  States  that  conditional  pardons  can  be  granted,  provid- 
vi'i  tlieir  restrictions  do  not  infringe  upon  either  the  constitutions  or  the 
laws.  Com.  v.  HiKjdertij,  4  Brewst.  320;  Arthur  v.  Craig,  48  Iowa,  204;  30 
Am.  Rep.  395;  Ex  parte  Wvlh,  50  U.  S. ;  18  How.  307.  In  some  states  such 
I  anions  are  specially  jirovided  for  by  constitutional  provisions.  State  v. 
Fuller,  1  McCord  L.  IIM;  Re  parte  Marks,  64  Cul.  29. 

Conditions  permiiisible.—l\h>'^ix\,  immoral  or  impossible  conditions  inval- 
idate a  pardon.  People.  V.  Potter,  1  Park  Crim.  Rep.  47.  The  governor, 
under  a  general  constitutional  provision  giving  him  the  power  to  pardon, 
can  not  grant  a  pardon  upon  the  condition  that  the  convict  shall  be 
employed  on  public  works.  Cohj.  v.  Fowler,  4  Cali.  35.  In  England  a 
pardon  was  held  valid,  which  contained  the  condition  that  the  convict 
should  serve  as  a  jailer  in  the  British  navy  for  three  years.  Reg.  v.  Fox- 
worthy,  supra.  Exile  from  the  United  States  is  a  condition  allowable  in  a 
pardon.  iS7«/e  v.  Addington,  2  Bail.  L.  516;  23  Am.  Dec.  150.  And  a  con- 
dition that  the  criminal  shall  leave  the  state.  Ex  parte  Hnnt,  10  Ark.  284. 
A  condition  that  the  prisoner  shall  abstain  from  use  of  intoxicating  liquors 
for  a  designated  time.     People  v.  Bnrn.%  77  Hun  92. 

^cce/J^a»ce.— Prisoner  can  not  be  compelled  to  accept  a  conditional  par- 
don.    U.  S.  V.  Wihoti,  S2  U.  S.;  7  Pet.  157. 

Construction  and  compliance. — A  condition  requiring  prisoner  to  "  leave 
the  country  forthwith."  imposes  a  banishment  equal  to  the  term  of  his  sen- 
tence.    CoHi.  V.  Haggertij,  4  Brewst.  326. 

Breach. — Breach  of  condition  annuls  the  pardon  and  leaves  the  criminal 
in  the  same  situation  as  he  was  before  being  pardonad.  FlovelVs  Case, 
8  Watts  &  S.  197;  Madon's  Case,  1  Leach  C.  C,  223.  Verdict  of  a  jury 
may  be  taken  in  determining  whether  a  criminal  before  the  court  on  a 
writ  of  habeas  corjms,  has  violated  the  condition  of  his  pardon  which  re- 
quired him  to  abstain  from  the  use  of  intoxicating  liquors  for  a  fixed 
period.    People  v.  Burns,  77  Hun  91. 

Enforcing  forfeiture. — An  indictment  will  lie  against  one  violating  con- 
dition of  his  pardon.  Re.v  v.  Miller,  1  Leach  C.  C.  74.  The  criminal  may 
be  recommitted  on  his  original  sentence,  if  he  violatas  the  conditions  of  his 
pardon.  People  v.  Potter,  supra.  A  criminal,  having  committed  a  breach 
of  the  condition  of  his  pardon,  may  be  remanded  by  any  court  having  su- 
perior criminal  jurisdiction.    People  v.  Potter,  supra.    The  withdrawal  of 


404 


AMEUICAN  CRIMINAL  REPORTS. 


a  pardon  on  account  of  a  brench  of  its  condition  is  not  a  penalty  that  kIvih 
tl>e  prlHoncr  a  constitutional  right  to  the  usual  procoi'dinKs  in  criniiniil  cnsis. 
Kemiedy'it  Vane,  185  Mass.  48.  The  opposite  doctrine  is  laid  down  by  tiie 
Michiguu  Hupronij  court.    See  People  v.  Moore,  02  Mich.  4U0. 


In  Re  Buchanan, 


4i  s 


)  I 


Vi 


(146  N.  Y.  264.) 

Repuieve:  Effect  of— Execution  of  death  sentence— Unauthorized  appeal  to 

federal  supreme  court. 

1.  As  no  appeal  lies  to  the  federal  supreme  court  from  an  order  of  o  ' 

district  judge,  made  at  chambers,  denying  a  writ  of  luibean  cor)' 
taking  of  such  an  appeal  does  not  act  as  a  superai'deaa  so  as  to  [)rt'vent, 
until  the  determination  of  the  appeal,  the  execution  of  the  deatli  si'n- 
tence  imposed  by  a  state  court  on  the  appellant. 

2.  Const.  U.  S.,  amend.  14,  providing  that  no  state  shall  deprive  any  pei-son 

of  life  without  "  due  process  of  law,"  does  not  authorize  the  fedcnil 
courts  to  review  a  convicti<m  by  a  state  court  on  accoimt  of  erroi-s  in- 
volving the  competency  of  jurors,  or  to  determine  whether  a  proposid 
execution  of  a  death  sentence,  after  the  expiration  of  a  reprieve,  is  in 
pursuance  of  law. 

3.  Where  a  reprieve  is  granted  in  a  capital  case,  to  a  day  certain,  the  war- 

den should  execute  the  sentence  on  the  day  the  reprieve  expires,  and 
the  time  of  execution  need  not  be  again  fixed  by  court. 

Application  in  the  matter  of  Robert  W.  Buchanan,  a  dofond- 
ant  sentenced  to  the  punishment  of  death,  for  an  order  to 
bring  the  defendant  before  tlie  court,  that  a  warrant  may  issue 
directing  the  warden  to  execute  the  sentence. 

This  is  an  application  of  the  district  attorney  of  the  city  and 
county  of  New  York,  under  section  503  of  the  code  of  crimi- 
nal procedure,  for  an  order  to  bring  Robert  W.  Buchanan  be- 
fore this  court,  to  the  end  that  a  warrant  be  issued,  under  sec- 
tion 504,  commanding  the  agent  and  warden  of  the  state  prison 
at  Sing  Sing  to  do  execution  of  the  sentence  of  death  hereto- 
fore pronounced  against  him.  Buchanan,  on  the  10th  day  of 
August,  1893,  was  convicted  in  the  court  of  general  sessions 
of  the  peace  (25  N.  Y.  Supp.  481)  in  and  for  the  city  and  county 
of  New  York  of  the  crime  of  murder  in  the  first  degree,  and 
was  sentenced  to  the  punishment  of  death,  the  sentence  to  be 
executed  during  the  week  commencing  October  2,  1893.  Ap- 
peal was  taken  by  the  defendant  to  this  court  from  the  judg- 


IN  RE  BUCHANAN. 


495 


y    fll.lt     ^riv„s 

"liiial  ciM.s. 
lown  by  tin. 


Y?  api^eal  d, 


r>f  a  I 

to  prevent, 

tlt'iltll  WJl- 


any  pei-son 

tJie  ft'dcnil 

erroi-8  iii- 

apropowd 

>rit'vt',  is  ill 


n,  the  war- 
xpires,  and 

a  (lefend- 
ordor  to 
nay  issue 

city  and 
'f  criini- 
!inan  be- 
ider  sec- 
e  prison 

liereto- 
'  day  of 
sessions 

county 
ee,  and 
!e  to  be 
I  Ap. 
e  judg- 


ment of  conviction,  and  tlio  court  aflflrmed  tlic  _,a(1<ifm(Mit  Feb- 
ruary '2(i,  1895.  Tlio  original  time  fixed  for  the  e.\ecution  of 
tilt'  defendant  having  ])assed  before  the  artirniance  of  the  judg- 
niL'iit  in  this  court,  he  was  thereafter  brought  before  the  ct)urt 
(tC  general  sessions,  in  which  the  trial  Avas  had,  and  a  wan-ant 
was  issued  commanding  execution  of  the  sentence  during  the 
woelc  commencing  Monday,  April  23,  1895.  Before  the  time 
appointed  for  the  execution  of  the  sentence,  and  on  the  11th 
(lay  of  April,  1895,  counsel  for  the  defendant  applied,  upon  his 
j)L'tition,  to  Judge  Brown,  one  of  the  associate  justices  of  the 
supreme  court  of  the  United  States,  pniying  that  a  writ  of 
enor  and  supersedeas  might  issue  out  of  that  court  to  the 
court  of  general  sessions  of  the  city  and  county  of  New  York. 
Tlio  petition  for  the  writ  set  forth  the  facts  of  his  conviction, 
the  affirmance  of  the  judgment  by  this  court,  the  re-sentence, 
and  alleged  as  the  grounds  of  the  ap|)lication  (1)  that  the  life 
of  the  petitioner  was  sought  to  be  taken  without  duo  process 
of  law;  and  (2)  that  he  was  not  tried  by  an  impartial  jury. 

In  support  of  these  general  allegations,  the  petition  set  forth 
what  occurred  on  the  trial  in  connection  with  the  juror  Para- 
dise, and  it  was  alleged  that  he  was  physically  and  mentally 
incapacitated  to  take  part  in  the  deliberations  of  the  jury,  and 
from  participating  in  the  verdict,  and  that  the  verdict,  by 
reason  thereof,  was  the  verdict  of  eleven  jurors  onl}'.  Judge 
lirown  referred  the  application  to  the  full  bench  of  the  su- 
preme court,  which  court,  after  hearing  counsel,  and  on  the 
iCth  day  of  April,  1895,  denied  the  application  for  the  writ, 
on  the  ground  that  the  petition  did  not  disclose  any  federal 
question,  or  any  denial  of  due  process  of  law,  the  competency 
of  the  juror  being  a  matter  within  the  sole  cognizance  of  the 
state  tribunals.  On  Tuesday,  the  23d  day  of  April,  1895  (dur- 
ing the  week  appointed  for  the  execution  of  the  sentence),  the 
execution  not  having  taken  place,  the  governor  of  the  state, 
upon  application  of  the  friends  of  the  defendant,  and  persons 
interested  in  his  behalf,  granted  a  respite  of  execution  until 
May  1,  1895.  On  the  29th  day  of  April,  1895,  the  defendant, 
through  his  counsel,  applied  to  Judge  Addison  Brown,  judge 
of  the  United  States  district  court  for  the  Southern  district  of 
New  York,  at  chambers,  for  a  writ  of  habeas  corpus.  The 
petition  alleged  that  the  defendant  was  illegally  and  unlaw- 
fully restrained  of  his  liberty,  in  violation  of  the  statute  and 


til 


ii: 


i\  i' 


Wi     \ 


496 


AMERICAN  CRIMINAL  REPORTS. 


laws  of  the  United  States  and  of  the  statutes  of  this  state,  and 
of  the  treaty  between  the  United  States  and  Enghind,  and  tliat 
his  trial  and  conviction  were  in  violation  of  said  statutes  and 
laws,  and  of  said  treaty,  and  of  the  constitution  of  the  United 
States.  The  petition  was  based  upon  two  assertions:  (1) 
That  the  juror  Paradise  did  not  possess  the  qualifications  of 
jurors  specified  in  the  state  statutes,  in  that  he  was  not  in  pos- 
session of  his  natural  faculties,  nor  of  sound  judgment;  and  (*J) 
that  the  threat  to  execute  the  defendant  on  the  1st  (l«y  of  ]\Iay, 
18i>5 — the  day  to  which  the  execution  has  been  respited — was 
in  violation  of  law,  for  the  reason  that  a  respite  by  the  gov- 
ernor did  not  authorize  the  execution  of  a  death  sentence  on 
the  day  when  the  respite  terminated,  and  that  a  new  day  could 
only  be  fixed  by  the  court,  on  ap|)lication,  and  under  the  sec- 
tions of  the  code  of  criminal  procedure  before  referred  to. 
Judge  Brown  refused  to  grant  the  writ,  and  indorsed  on  tl;e 
petition  a  statement  that  he  found  therein  "no  legal  reason 
for  entertaining  or  further  considering  the  application."  No 
fornuil  order  was  entered  denying  the  writ,  nor  any  otiicr 
entry  of  the  decree  made.  Thereupon,  on  the  same  day  (April 
29th),  the  counsel  for  the  defendant  prepared,  and  caused  to 
be  filed  in  the  office  of  the  clerk  of  the  district  court  a  notice 
of  appeal  from  the  decision  of  Judge  Brown,  entitled  in  the 
proceeding,  to  the  supreme  court  of  the  United  States,  on  which 
was  indorsed  by  the  clerk,  "Notice  of  ai)peal  filed  April  29, 
1895."  It  appears  that  on  the  30th  of  April  one  of  the  de- 
fendant's counsel  presented  to  the  clerk  of  the  United  States 
supreme  court,  in  Washington,  a  document  which  puri)ortod 
to  be  a  transcript  of  the  record  of  the  proceedings  before 
Judge  Brown.  The  clerk  refused  to  receive  or  file  the  papers, 
on  the  ground  that  no  a])peal  had  been  allowed,  and  informed 
the  counsel  that  he  could  apply  for  an  allowance  to  a  judge  of 
the  supreme  court,  or  to  the  court,  which  was  then  in  session. 
But  no  further  application  appears  to  have  been  made.  The 
governor  of  the  state,  on  May  1,  1S95,  granted  a  further  res- 
pite to  Wednesday,  May  8th.  Meanwhile  a  question  had  been 
raised  as  to  the  effect  of  the  a|)peal  on  the  habeas  corpus  pro- 
ceeding to  the  supreme  court  of  the  United  States,  and  whether 
it  operated  as  a  stay  of  proceedings  until  the  appeal  was  heard 
and  determined.  The  question  was  informally  presented  to 
the  attorney -general,  and,  the  practice  and  law  being  unsettled, 


d      5; 


3  state,  and 
tl,  and  that 
tatutes  and 
the  Unitod 
tions:    (]) 
fications  of 
not  in  j)os- 
nt;  and  (-2) 
<y  of  ]\rj,  V, 
)ited— was 
jy  the  gov- 
entence  on 
(lay  con  Id 
er  the  soc- 
eferred  to. 
sed  on  tl:e 
/jfal  reason 
tion."    i\„ 
any  otlicr 
day  (April 
caused  to 
rt  a  notice 
led  in  the 
i,  on  wliich 
April  2!), 
of  the  de- 
ted  States 
purported 
gs  before 
lie  ]}apers, 
informed 
I  judge  of 
n  session, 
ide.     The 
ether  res- 
had  been 
rpus  pro- 
whetJier 
MS  heard 
ented  to 
nsettled, 


IN  RE  BUCHANAN. 


497 


he  advised  that  the  opinion  of  the  court  should  be  taken.  This 
involved  a  further  postponement  of  the  execution  of  the  sen- 
tence, and  the  day  of  the  second  respite  having  expired,  and  no 
time  thereafter  being  fixed  for  its  execution,  this  present  ap- 
plication was  made. 

John  Ji,  Fellows,  District  Attorney,  and  John  D.  Lindsay, 
for  application. 
George  W.  Gibbons  and  Daniel  T.  Kimball,  opposed. 

Andrews,  C.  J.  (after  stating  the  facts).  This  application 
must  be  granted,  "  if  no  legal  reason  exists  against  the  execu- 
tion of  the  sentence."  Code  Cr.  Proc.  §  504.  The  only  sug- 
gestion made  by  counsel  for  the  defendant  containing  a  sem- 
blance of  a  legal  reason  against  granting  the  application  is  that 
the  appeal  to  the  United  States  supreme  court,  taken  on  the 
29th  day  of  April,  1895,  from  the  decision  of  the  dibtrict  judge 
denying  the  writ  of  habeas  corpus,  operated  to  suspend  all 
proceedings,  and  deprived  the  state  courts  of  any  power  to  act 
in  the  premises  until  the  appeal  shall  be  heard  and  determined. 
There  is  no  ground  for  such  a  contention.  That  appeal  has 
not  only  never  been  perfected  by  obtaining  an  allowance 
thereof  (assuming  that  such  an  appeal  would  lie),  but  it  was 
wholly  inoperative  and  ineffectual,  for  the  reason  that  under 
the  statutes  of  the  United  States  no  appeal  can  be  taken  to  the 
supreme  court  from  an  order  made  by  a  district  judge,  at 
chambers,  in  a  habeas  corpus  proceeding.  Prior  to  the  act  of 
congress  (chapter  517  of  the  laws  of  1891),  passed  March  3, 
1891,  entitled  "An  act  to  establish  circuit  courts  of  appeals 
and  to  define  and  regulate  in  certain  cases  the  jurisdiction  of 
the  courts  of  the  United  States  and  for  other  purposes,"  appeals 
in  habeas  corpus  proceedings  before  federal  officers  or  courts 
were  regulated  by  the  provisions  of  chapter  13  of  the  revised 
statutes  of  the  United  States  (sections  751-766). 

The  supreme  court  and  the  several  circuit  and  district  courts, 
and  the  several  justices  and  judges  thereof,  within  their  re- 
spective jurisdictions,  had  power  to  issue  the  writ;  and  from 
the  final  decision  of  any  court,  justice  or  judge  inferior  to  the 
circuit  court  upon  an  application  for  the  wr:t,  or  upon  the 
writ,  when  issued,  an  appeal  could  be  taken  to  the  circuit  court 
for  the  district  in  which  the  cause  was  heard,  in  the  case  of  any 


'  n  i : 


i 


?'il'kiV! 


498 


AMERICAN  CRIMINAL  REPORTS. 


kM:m 


person  alleged  to  be  restrained  of  his  liberty  in  violation  of  the 
constitution  of  the  United  States,  or  of  any  law  or  treaty  of 
the  United  States,  and  in  a  ease  involving  a  question  under  the 
law  of  nations.    Section  763.    But  no  appeal  could  bo  taken 
from  the  decision  of  an  inferior  court  or  judge  directly  to  the 
supreme  court.    The  only  appeal  permitted  to  the  supreme 
court  was  from  the  final  decision  of  a  circuit  court.    Section 
764.    Pending  an  appeal  authorized  by  sections  7G3  and  764, 
and  until  final  judgment  therein,  in  a  case  where  the  imprison- 
ment under  review  was  under  state  authority,  any  proceeding 
in  the  matter,  in  a  state  court,  was,  by  section  766,  declared  to 
be  null  and  void.     Under  the  provisions  of  the  revised  statutes, 
therefore,  the  appeal  sought  to  be  taken  in  the  present  case 
directly  from  the  decision  of  the  district  judge  to  the  supreme 
court  would  have  been  unauthorized.     Such  appeal  could  not 
have  been  taken  either  from  the  decision  or  order  of  the  dis- 
trict court,  or  of  a  judge  of  that  court.    The  act  of  1891,  which 
created  circuit  courts  of  appeals,  changed  to  some  extent  the 
pre-existing  system  regulating  ap})eals  from  district  courts. 
The  fifth  section  authorized  appeals  or  writs  of  error  to  be 
taken  from  the  district  courts,  or  from  the  existing  circuit 
courts,  direct  to  the  supreme  court,  in  particular  cases,  and, 
among  others,  a  case  involving  the  construction  or  application 
of  the  constitution  of  the  United  States.     It  is  the  judgment 
and  decision  of  a  district  court,  in  one  of  the  cases  specified, 
which  may  be  reviewed  on  direct  appeal  to  the  supreme  court 
under  this  section.     The  section  does  not  authorize  such  an  ap- 
peal from  an  order  or  decision  of  a  district  judge  at  chambers, 
and  this  is  settled  by  repeated  adjudications  of  the  supreme 
court  of  the  United  States,  the  latest  of  which  is  Lamhcrt  v. 
Barrett  (decided  at  October  term,  1894),  157  U.  S.  697,  which 
was  an  appeal  from  the  order  of  a  circuit  judge  denying  an  ap- 
plication for  a  writ  of  habeas  corpus  in  case  of  a  person  under 
conviction  for  murder  by  the  courts  of  New  Jersey.     The 
supreme  court  dismissed  the  appeal.  Fuller,  C.  J.,  saying:  "But 
this  is  an  order  of  the  circuit  judge  at  chambers,  and  an  appeal 
from  such  an  order  will  not  lie;"  citing  Carper  v.  FU2(jerald, 
121  U.  S.  87;  Ex  parte  Zennon,  150  U.  S.  393,  and  3[cKnight 
V.  James,  155  U.  S.  685.    It  is  manifest,  in  view  of  these  decis- 
ions, that  the  attempted  appeal  to  the  supreme  court  from  the 
denial  by  the  district  judge  of  the  writ  of  habeas  corpus  was  a 


|ationofthe 
»r  treaty  of 
jn  under  the 
P  be  taken 
'ctly  to  the 
'le  supreme 
t-  Section 
|C3  and  764 

e  imprison- 
proceeding 
[declared  to 
'd  statutes, 
resent  case 
le  supreme 
could  not 
of  the  dis- 
SOl,  which 
extent  the 

ict  courts. 

JTor  to  be 
ng  circuit 

cases,  and, 

ipplication 
judgment 

»  specified, 

enie  court 

ich  an  ap- 

3banibers, 
supreme 

<ainbeH  v. 

?7,  which 

»g  an  ap- 

on  under 

By.     The 

g:  "But 

n  appeal 

tsgerald, 

^cKnigJd 

se  decis- 

rom  the 

IS  was  a 


IN  BE  BUCHANAN. 


499 


nullity.  The  appeal  was  unauthorized.  The  supreme  court 
acquired  no  jurisdiction,  and  it  is  needless  to  say  that  an  ap- 
l)eal  not  allowed  by  law,  to  a  court  which  hiid  no  power  to 
entertain  it,  could  not  operate  as  a  stay,  and  furnishes  no  rea- 
son for  delaying  the  execution  of  the  sentence. 

We  might  here  close  the  consideration  of  this  case.  But  this 
court  had  occasion,  in  the  case  of  People  v.  Juyigo^  12S  N.  Y. 
589,  to  allude  to  the  practice  of  invoking  the  processes  and 
procedure  of  the  courts  of  the  United  States  in  respect  of  judg- 
ments of  the  state  courts  for  mere  purpose  of  delay,  and  which 
has  brought  scarcely  less  than  a  scandal  upon  the  administra- 
tion of  the  criminal  law  of  this  state.  The  applications  to  the 
United  States  courts  after  convictions  for  murder  in  the  state 
courts  have  been  under  pretext  of  the  new  jurisdiction  con- 
ferred upon  the  federal  courts  by  the  fourteenth  amendment 
of  the  constitution  of  the  United  States,  and  generally  under 
that  clause  which  declares,  "  nor  shall  any  state  deprive  any 
person  of  life,  liberty  or  property  without  due  process  of  law." 
But  it  was  not  the  purpose  of  this  amendment  to  interfere 
with  the  ordinary  administration  of  justice  by  the  courts  of  a 
state,  or  to  affect  the  final  and  ultimate  jurisdiction  of  the 
courts  of  a  state  over  crimes  and  offenses  defined  and  declared 
by  its  laws,  and  committed  within  its  territorial  jurisdiction. 
The  phrase,  "  due  process  of  law,"  used  in  the  constitution, 
comes  to  us  from  our  English  ancestors.  They  forbade  any 
exercise  of  merely  arbitrary  power,  depriving  a  citizen  of  life, 
liberty,  or  property,  and  they  protect  him  from  a  violation  by 
a  state  of  these  cardinal  rights  which  belong  to  every  defi- 
nition of  civil  liberty.  In  case  of  accusation  of  crime,  the 
accused  is  entitled  to  have  an  inquiry,  a  hearing,  and  judg- 
ment, before  he  can  be  deprived,  by  sentence,  of  his  liberty  or 
life.  But  "  due  process  of  law,"  and  what  constitutes  it,  are, 
within  the  limitation  mentioned,  to  be  determined  by  the  state 
in  every  caje  where  the  state  can  exercise  rightful  authority. 
The  jurisdiction  over  crimes,  save  in  exceptional  cases,  not 
necessary  now  to  be  mentioned,  is  a  state,  and  not  a  federal, 
jurisdiction.  The  state  constitutes  appropriate  tribunals  for 
the  trial  of  offenses,  and  prescribes  the  procedure  for  the  in- 
vestigation, trial,  and  punishment  of  crimes.  That  is,  "  duo 
process  of  law,"  within  the  meaning  of  these  words,  which  af- 
fords to  every  citizen  the  equal  protection  of  the  laws,  and,  in 


If 

\  f^E^M^w^l 

1 

!P 

t  : 

mm 

(; 

1  . 

i 

I 


;t-'; 


m 
if. 


\i 


n 


Li,  if 


m 

P,- 

r 

'*  ^ 

E , 

h' 

r^ 

II 1 

let.'. 

■ttl 

)'.] 

500 


AMERICAN  CRIMINAL  REPORTS. 


case  of  accusation  of  crime,  the  ri^ht  of  trial  by  jury  before 
one  of  its  duly-constituted  tribunals  having  jurisdiction  of  the 
crime,  under  a  procedure  which  the  state  prescribes.  The 
fourteenth  amendment  confers  upon  the  courts  of  the  United 
States  no  jurisdiction  to  supervise  the  administration  by  state 
tribunals  of  the  criminal  law  of  the  state,  or  to  correct  errors, 
or  to  modify  or  change  their  judgments.  All  errors,  however 
flagrant,  which  may  have  been  committed  on  the  trial,  in  the 
drawing  of  jurors,  or  as  to  their  competency,  in  the  reception 
or  rejection  of  evidence,  in  the  sentence  pronounced,  or  in  any 
of  the  matters  which  pertain  to  the  procedure  and  conduct  of 
the  trial,  must  be  corrected,  if  at  all,  in  the  state  courts. 

The  United  States  courts,  in  general,  can  neither  inquire  as 
to  the  justice  of  a  conviction,  nor  review  the  procedure  on  the 
trial,  or  the  subsequent  procedure,  unless  there  has  been  no 
hearing,  no  trial,  and  no  conviction,  and  what  has  taken  place 
is  the  mere  semblance  of  a  trial,  to  cover  a  deprivation  of 
liberty  or  life  in  violation  of  the  fundamental  principles  of 
liberty  and  justice.  The  extent  or  limitations  of  the  new 
jurisdiction  devolved  on  the  United  States  courts,  under  the 
fourteenth  amendment,  have  not  yet  been  fully  ascertained  or 
adjudicated.  But  the  supreme  court  of  the  United  States  has 
steadily  and  in  repeated  instances,  disclaimed  jurisdiction,  un- 
der it,  to  review  errors  assigned  on  trials  in  state  courts,  or  to 
constitute  itself  a  general  court  of  review;  and  the  cases  must 
be  rare  and  exceptional,  under  the  construction  placed  by  the 
court  upon  the  amendment,  which  would  justify  an  invocation 
of  the  processes  and  procedure  of  the  federal  courts,  to  arrest 
the  execution  of  the  judgments  of  the  courts  of  a  state  in 
criminal  cases.  See  Ilurtado  v.  People,  110  U.  S.  516;  CM- 
well  V.  TexM.  137  U.  S.  692;  McNulty  v.  State,  149  U.  S;  645; 
hi  re  Kemmler,  136  U.  S.  436;  In  re  Wood,  140  U.  S.  278. 
The  petition  presented  to  the  district  judge  in  this  case,  dis- 
closed on  its  face  that  no  federal  question  was  involved,  and 
the  refusal  of  Judge  Brown  to  entertain  the  proceeding  was 
manifestly  proper.  The  question  as  to  the  competency  of  the 
juror  Paradise  to  take  part  in  rendering  the  verdict  was  raised 
on  the  prior  application  to  the  supreme  court  of  the  United 
States  for  a  writ  of  error,  which  was  dismissed  by  the  supreme 
court,  expressly  on  the  ground  that  the  question  was  exclu- 
sively for  the  state  courts.    But  in  the  petition  for  the  habeas 


ry  before 
lion  of  the 
bes.  The 
|he  United 
by  state 
set  errors, 
I,  however 

fal,  in  the 
reception 
or  in  any 

[onduct  of 

Irts. 

inquire  as 
ire  on  the 
been  no 
ken  place 
vation  of 
ciples  of 
the  new 
nder  the 
tained  or 
tates  has 
"tion,  un- 
rts,  or  to 
ses  must 
1  by  tlie 
vocation 
to  arrest 
state  in 
6;  CaliJ. 
.  S;  645; 
S.  278. 
ase,  dis- 
ed,  and 
^g  was 
'  of  the 
s  raised 
United 
ipreme 
exclu- 
habeas 


IN  EE  BUCHANAN. 


501 


corpus,  made  after  the  decision  had  been  announced,  the  same 
question,  though  in  a  somewhat  different  form,  was  made  one  of 
the  grounds  of  the  application.  The  other  point  set  forth  in 
the  petition,  namely,  that  the  reprieve  extending  to  a  day  be- 
yond the  week  in  which,  by  the  order  of  the  court,  the  execu- 
tion was  to  take  place,  made  it  necessary  that  a  new  time 
should  be  fixed  by  the  court  before  the  execution  could  be  had, 
presented  also  a  purely  state  question,  on  the  construction  of 
certain  sections  of  the  code  of  criminal  procedure.  It  was 
a  matter  for  the  state  courts  to  determine,  and  whether  the 
proposed  execution  by  the  warden  was  in  pursuance  of  the 
law,  or  contrary  to  the  law,  the  remedy  of  the  defendant,  if 
any,  was  in  an  application  to  the  courts  of  the  state  for  direc- 
tion and  relief. 

We  deem  this  a  proper  occasion  to  express  the  opinion  of 
the  judges,  that  a  reprieve  by  the  governor  to  a  day  certain, 
granted  in  a  capital  case,  authorizes  the  execution  of  sentence 
on  the  day  on  which  the  reprieve  terminates,  and  that  it  is 
not  necessary  that  the  prisoner  should  be  brought  before  the 
court  to  have  the  time  of  execution  fixed.  By  section  5,  art. 
4,  of  the  constitution  of  the  state,  the  governor  is  vested  with 
the  power  "to  grant  reprieves,  commutations  and  pardons 
after  conviction."  The  power  of  pardon  for  crimes,  was,  in 
England,  vested  in  the  king,  as  a  royal  prerogative,  and  the 
power  to  reprieve  a  prisoner,  under  sentence,  was  included  in 
the  power  to  pardon.  Blackstone  (4  Comm.  394)  defines  a 
"  reprieve  "  to  mean  "  the  withdrawing  of  a  sentence  for  an 
interval  of  time,  whereby  the  execution  is  suspended."  It  op- 
erates in  capital  cases  only.  Chit.  Cr.  Law,  757.  The  distinc- 
tion between  a  "  reprieve "  and  a  "  suspension  of  sentence," 
although  the  words  are  sometimes  used  interchangeably,  is 
that  a  reprieve  postpones  the  execution  of  the  sentence  to  a 
day  certain,  whereas  a  suspension  is  for  an  indefinite  time. 
See  opinion  of  Edmonds,  J.,  in  Carnal  v.  People,  1  Parker  Cr. 
R.  362.  The  section  of  the  constitution  referred  to,  uses  the 
word  "  suspension  "  in  the  clause  which  confers  upon  the  gover- 
nor power  to  "  suspend  the  execution  of  a  sentence  for  treason, 
until  the  case  shall  be  reported  to  the  legislature  at  its  next 
meeting."  In  People  v.  Enoch,  13  Wend.  159,  which  was  an 
appeal  in  a  capital  case,  in  which  the  execution  of  the  sentence 
had  been  respited  by  the  governor,  the  chancellor  said :    "  I 


■  •    '  ■  \   - 

i.    '; 

1  = 

1 

i 

IflHr'^' 

•  :  '^ 

m^: 


502 


AMERICAN  CRIMINAL  REPORTS. 


n:i 


ii 


.1 

>  t 

J: 


am  of  opinion  that  in  a  case  like  the  present,  where  the  exe- 
cution of  the  sentence  is  respited  by  the  governor  until  a  par- 
ticular day,  it  is  the  duty  of  the  sheriff  to  proceed  and  execute 
the  judgment  of  the  court  at  that  time,  unless  further  respite 
is  granted,  or  the  judgment  has  been  reversed  or  annulled  in 
the  meantime."  The  same  question  came  before  the  supreme 
court  of  Ohio,  in  the  case  of  Sterlinr/  v.  Drake,  29  Ohio  St. 
457,  where  the  governor  of  Ohio,  under  a  constitutional  pro- 
vision in  the  constitution  of  Ohio,  similar  to  the  provision  in 
our  constitution,  had  granted  a  reprieve  in  a  capital  case  to  a 
day  certain;  and  the  court  held  that  the  sheriff  was  authorized 
to  proceed  on  that  day  to  execute  the  sentence,  without  further 
action  of  the  court.  The  governor,  under  the  constitution,  is 
vested  with  the  prerogative  to  grant  reprieves.  This  is  a 
power  to  enlarge  and  extend  the  time  fixed  by  the  court  fcr 
the  execution  of  the  sentence  of  death  to  a  dav  certain,  in  the 
future.  The  right  to  execute  the  sentence  on  that  day  inheres 
in  the  power  to  fix  the  day  to  which  the  reprieve  shall  extend. 
If,  in  case  of  a  reprieve,  a  resentence  is  necessary,  the  reprieve 
is  not  to  a  fixed  day,  but  to  some  indefinite  day,  to  be  fixed 
by  the  court  after  the  day  named  in  the  reprieve  is  passed. 
We  are  of  opinion  that  section  503  of  the  code  has  no  ap- 
plication to  the  case  of  a  reprieve,  unless,  as  in  this  case,  the 
day  fixed  thereby  has  passed,  and  the  sentence  has,  for  an}' 
reason,  not  been  executed,  although  the  judgment  of  convic- 
tion is  still  in  full  force.  We  think  it  was  the  duty  of  the 
warden,  in  whose  custody  the  defendant  was  on  the  8th  day 
of  May,  1895,  the  day  on  which  the  second  reprieve  termi- 
nated, to  execute  the  sentence  on  that  day,  without  waiting  for 
the  order  of  the  court.  The  court,  having  considered  the  rea- 
sons presented  against  granting  the  present  application,  and 
finding  in  them  no  legal  reason  for  further  delay,  has  issued  a 
warrant  in  conformity  with  section  504  of  the  code  of  crim- 
inal procedure.     All  concur.    Application  granted. 

Note, — Reprieve  by  governor,  and  stay  of  execution  of  death  sentence 
by  gupreme  amrt  distiiiguislied. — "  In  solving  the  question  as  to  whether 
the  granting  of  a  stay  of  execution  by  the  court,  in  a  capital  case  pending 
before  it  on  appeal,  is  a  reprieve^  within  the  meaning  of  that  word,  as  it 
appears  in  the  constitution,  we  n  ust  keep  in  mind  the  fact  that  the  same 
constitution  creates  the  three  sevci-al  departments  of  the  state  government, 
and  that  it  was  the  acknowledged  purijose  of  the  framers  of  that  instru- 
ment to  make  these  depai'tmeuts  independent  of  each  other.    To  hold  that 


IN  RE  BUCHANAN. 


603 


in 


re  tlie  exe- 
'until  a  par- 
md  execute 
[her  respite 
annulled  in 
N  supreme 
^  Ohio  St. 
itional  pro- 
frovision  in 
tl  case  to  a 
authorized 
'Ut  further 
ititution,  is 
This  is  a 
court  f(  r 
l^in,  in  tlie 
lay  inheres 
all  exteutl. 
ie  reprieve 
o  be  fixed 
is  passeil. 
las  no  aj)- 
's  case,  the 
»^s,  for  any 
of  convic- 
^ty  of  the 
e  8th  day 
sve  termi- 
aiting  for 
li  the  rea- 
itiou,  and 
8  issued  a 
'  of  crim- 


h  sentence 
to  whether 
3e  pendiug 
TOrd,  as  it 
i  the  same 
>^ernment, 
lat  instru- 
hold  that 


the  st'iy  of  execution  by  the  supreme  court,  in  a  case  like  this,  is  a  reprieve, 
witliiu  tlie  meaning  of  the  section  of  the  constitution  which  provides  that 
the  governor  shall  have  power  to  grant  reprieves,  is  to  annihilate  one  sec- 
tion of  that  instrument  with  another,  for  if  the  court  is  compelled  to  appeal 
to  the  executive  for  a  stay  of  execution  in  order  to  enable  it  to  liear  and  de- 
termine a  case,  it  is  not  independent.  We  are  not  at  liberty  to  suppose 
that  the  convention  which  framed  the  constitution  intended  such  a  result 
as  this.  It  intended  that  the  constitution  should  constitute  a  harmonious 
whole,  and  it  is  a  Court's  duty  to  so  construe  it,  if  it  is  possible  to  do  so. 
Under  the  construction  contended  for,  if  one  convicted  of  murder,  and 
sentenced  to  suffer  the  death  penalty,  should  appeal  to  the  court,  and,  by 
the  exercise  of  all  the  diligence  possible,  should  not  be  able  to  file  his 
transcript  earlier  than  the  day  before  the  time  fixed  for  his  execution, 
leaving  no  time  to  investigate  his  case,  if  the  chief  executive  should  not 
be  accessible,  or,  if  accessible,  he  should  refuse  to  grant  a  reprieve,  the 
result  would  be  the  execution  of  the  appellant,  and  an  investigation  of  his 
case  afterward.  If,  upon  investigation,  the  conclusion  should  be  reached 
that  he  had  been  illegally  convicted,  the  most  that  could  be  done  would  be 
to  reverse  the  judgment,  and  to  that  extent  vindicate  his  memory.  This 
IS  not  the  justice  contemplated  by  the  law.  If  we'  adopt  this  construction, 
in  the  case  supposed,  the  power  of  the  court  to  administer  justice  between 
the  appellant  and  the  state  would  not  depend  upon  its  own  will,  but  upon 
the  will  of  the  governor — the  incumbent  of  another  independent  depart- 
ment of  the  government.  Without  cogent  reasons,  such  a  construction 
should  not  be  adopted.  In  construing  the  constitution  upon  the  subject 
now  under  immediate  consideration,  it  is  to  be  constantly  borne  in  mind, 
not  only  that  the  judiciary  is  an  independent  department  of  the  state 
government,  but  also  that  it  derives  none  of  its  judicial  power  from  either 
of  the  other  departments.  It  is  true  that  the  general  assembly  may  create 
courts,  under  the  constitution,  but  it  can  not  confer  on  them  judicial 
power,  for  it  jwssesses  none  to  confer.  When  created,  such  power  is  con- 
ferred by  the  constitution,  and  not  by  the  act  creating  the  court.  Elliott's 
App.  Proc,  g  1;  State  v.  Noble,  118  Ind.  850;  Shugart  v.  Miles,  125  Ind. 
445;  Hawkins  v.  State,  126  Ind.  579;  Missouri  River  Tel.  Co.  v.  First  Nat. 
Bank,  74  III.  217." 

The  supreme  court  is  a  court  created  by  the  constitution;  and,  as  such, 
it  possesses  the  inherent  power  to  do  all  acts  necessary  to  enable  it  to 
effectually  exercise  the  jurisdiction  conferred  Uiwn  it.  The  authority 
to  review  and  revise  necessarily  includes  the  power  to  enforce  the  law 
and  administer  justice.  Independent  of  any  statutory  provision,  it  has  the 
power  to  so  frame  its  judgments  and  orders  as  to  secure  justice  to  litigants 
within  its  jurisdiction;  since  the  right  of  appeal  carries  with  it  the  right  to 
a  judgment  awarding  justice  according  to  the  law  of  the  land.  Elliott's 
App.  Proc,  8  21;  Bank  v.  Knoup,  6  Ohio  St.  343;  Buchanan  v.  Milligan,  108 
Ind.  433;  Slumnon  v.  Hay,  106  Ind.  589;  Cottrell  v.  Nixon,  109  Ind.  878; 
Roberts  v.  Lindley,  121  Ind.  56;  Railway  Co.  v.  Etzler,  119  Ind.  89;  Broum 
V,  Jojie*,  113  Ind.  46.  We  are  of  the  opinion  that  the  court  possesses  the 
jxjwer  to  stay  proceedingn,  in  a  case  like  this,  when  necessary  to  enable  it 
to  investigate,  and  properly  decide,  the  questions  presented  by  the  record, 
independent  of  any  statutory  provision  upon  the  subject.    The  statutes 


1  n 


#1 


liiif.'.:!' 


I  ' 


liii , 


i^ 


}y  ' 


504 


AMERICAN  CRIMINAL  REPORTS. 


are  simply  declaratory  of  a  power  which  existed  before  their  onactmrnt. 
No  more  solemn  duty  can  be  imposed  upon  the  courts  than  the  duty  of 
protecting,  and  the  duty  of  taking  human  life.  When  human  life  is  to 
be  taken  under  the  judgment  of  a  court,  the  act  can  not  be  justified,  except 
by  the  strict  observance  of  the  forms  of  the  law  of  the  commonwealth.  In 
a  matter  so  grave,  the  court  having  the  power  should  never  refuse  to  stay 
proceedings,  when  necessary  to  enable  it  to  inquire  whether  the  execution 
of  a  citizen  was  justified  under  the  law,  and  as  to  whether  the  forma  of  the 
law  had  been  observed,  the  proceeding  resulting  in  his  conviction.  JParker 
et  al.  V.  State,  136  Ind.  384. 

A  court  which  has  power  to  pass  sentence,  has  also,  of  common  right,  a 
discretionary  power  of  granting  reprieve.  2  Hawkins  P.  C.  657;  2  Dyer 
205;  Allen  V.  State  (Tenn.),  M.  &  Y.  294;  1  Bishop  Cr.  Proc.,  §  1299;  Whip- 
ple Case,  9  Cowan,  715;  People  v.  Reilly,  53  Mich.  260.  The  right  to  grant 
reprieves  as  to  insane  persons,  or  to  stay  proceedings  before,  as  well  as 
after  trial,  is  recognized  by  all  the  English  authorities.    1  Chitty  C.  L.  760. 


State  v.  Perley  et  al. 


(86  Me.  427.) 
Robbery:    Indictment— Allegation  of  value. 

1.  In  an  indictment  for  robbery,  a  description  of  the  property  taken,  as 
"  certain  money  and  one  silver  watch  and  watch  chain,  of  the  goods 
and  chattels  of  said  J.  N.  E.,"  is  sufficient,  without  further  allegation 
of  value. 

8.  The  rule  that  indictments  for  larceny  must  allege  the  value  of  the  articles 
stolen,  is  still  maintained,  because  the  punishment  for  larceny  is  grad- 
uated by  our  statutes  with  reference  to  the  value  of  the  proi)erty  taken. 

3.  There  is  nothing  in  the  nature  of  robbery,  as  defined  by  the  common  law, 
from  which  it  appears  that  the  value  of  the  property  taken  has  ever  been 
deemed  of  the  essence  of  the  crime,  and  there  is  no  statute  in  this  state 
which  makes  the  punishment  of  the  offense  dependent  upon  the  value 
of  the  property  taken. 

Exceptions  from  Supreme  Judicial  Court,  Penobscot  County. 

Frank  Perley  and  Jara«s  H.  Goodwin  were  convicted  of 
robbery,  and  except.    Exceptions  overruled. 

The  following  was  the  indictment : 

"  The  jurors  for  the  state  aforesaid,  upon  their  oath,  present 
that  Frank  Perley  and  James  H.  Goodwin,  of  Bangor,  in  the 
county  of  Penobscot,  on  the  30th  day  of  August,  in  the  year  of 
our  Lord  1892,  at  Bangor,  in  the  county  of  Penobscot,  afore- 


*■ 


ii 


STATE  V.  PERLEY  ET  AL. 


505 


.  Pnactmcnt. 
J  the  duty  of 
Ian  life  is  to 
lified,  except 
Iwealth.  In 
ffuse  to  stay 
|e  execution 
tonus  of  the 

on.    Parker 

'on  right,  a 
>57;  2  Dyer 
299;  Whip. 
M  to  grant 
as  well  as 
y  C.  L.  760. 


y  taken,  as 
the  goods 
allegation 

;lie  articles 
\V  is  grad- 
rty  taken, 
inion  law, 
'ever been 
this  state 
the  value 


County, 
"ted   of 


present 
in  the 
vear  of 
afore- 


said, in  and  upon  one  John  H.  Emerson,  feloniously  an  assault 
did  make,  and  him,  the  said  John  H.  Emerson,  did  then  feloni- 
ously put  in  fear,  and  with  force  and  violence  did  then  feloni- 
ously steal,  take  and  carry  away  from  the  person  of  him,  the 
said  John  H.  Emerson,  certain  money  of  the  said  John  H. 
Emerson,  and  one  silver  watch  and  one  watch  chain  of  the 
goods  and  chattels  of  the  said  John  H.  Emerson,  against  the 
peace  of  said  state  and  contrary  to  the  statute  in  such  case 
made  and  provided." 

The  defendants  moved  in  arrest  of  judgment  as  follows : 

"  And  now,  after  a  general  verdict  of  guilty,  and  before 
judgment  in  the  above  entitled  cause,  the  respondents,  the  said 
Frank  Perley  and  James  H.  Goodwin,  come  and  move  the 
court  that  judgment  in  said  cause  be  arrested,  and  that  they 
be  discharged  and  allowed  to  go  without  day,  for  the  follow- 
ing reasons,  to  wit : 

"  First.  Because  said  indictment  does  not,  with  sufficient 
certainty,  precision,  and  particularity,  allege  and  set  forth  any 
crime. 

"  Second.  Because  said  indictment  does  not  with  sufficient 
certainty,  precision,  and  particularity,  set  forth  and  allege  the 
crime  intended  to  be  charged  by  the  grand  jury,  and  which 
the  jury  who  tried  the  case  meant  to  convict  the  respondents 
of,  to  wit,  robbery. 

"  Third.  Because  the  money  and  goods  and  chattels  alleged 
in  said  indictment  to  have  been  stolen,  taken  and  carried  away 
from  the  person  of  John  H.  Emerson  are  not  set  forth  and  de- 
scribed with  sufficient  certainty,  precision  and  particularity. 

"  Fourth.  Because  the  money  alleged  in  said  indictment  to 
have  been  stolen  from  the  person  of  said  John  H.  Emerson  is 
not  described  at  all,  and  there  is  no  allegation  of  how  much 
it  amounted  to,  or  that  it  had  any  value,  and  there  is  no  alle- 
gation in  the  aforesaid  indictment  that  the  watch  and  chain, 
the  only  other  property  named  in  the  indictment,  was  of  any 
value  whatever,  and  no  reason  is  stated  in  said  indictment  why 
the  said  money  is  not  therein  described  or  its  amount  given,  or 
Avhy  its  value  is  not  stated,  if  it  had  value,  nor  is  any  reason 
given  in  said  indictment  why,  if  said  watch  and  chain  had 
value,  that  value  is  not  stated  therein. 

"Fifth.  Because  said  indictment  is  in  other  respects  in- 
formal, insufficient  and  not  valid." 


fl 


mi 


T; 


f 


506 


AMERICAN  CRIMINAL  REPORTS. 


The  motion  was  overruled  by  the  court,  and  an  exception 
was  taken  thereto. 

The  defendants  also  took  exceptions  as  follows : 

"  The  judge  presiding  did  not  inform  the  jury  that  tliey 
could  find  a  verdict  against  the  respondents  for  any  oirense 
less  than  robbery,  and  no  request  to  that  effect  was  ma<lo  by 
counsel,  and  no  allusion  was  made  to  the  point  by  counsel  on 
either  side  during  the  trial;  and  no  contention  was  set  up  at 
the  trial  that  the  respondents  might  be  guilty  of  any  less 
ottense,  if  guilty  at  all.  All  that  was  said  by  the  judge  on  that 
subject  is  embraced  in  the  following  extract  from  the  charge  : 
'  The  two  respondents  are  accused  by  the  indictment  of  tiie 
crime  of  robbery.  The  punishment  for  the  crime  may  be  as 
high  as  imprisonment  for  life,  and  it  may  be  as  low  as  any  term 
of  years,  which  might  be  two.'  " 

On  the  subject  of  value  of  property  taken,  the  judge  made 
the  following  remarks :  "  It  is  not  necessary  for  the  govern- 
ment to  prove  that  all  the  articles  alleged  were  taken  from  him 
in  order  to  constitute  robbery.  It  is  sufficient  if  they  were  all 
taken,  or  any  of  them  were  taken,  or  any  part  of  them  were 
taken,  or  the  least  of  them  were  taken.  No  matter  how  suc- 
cessful or  unsuccessful  in  amount  of  property  taken,  if  any  was 
taken  from  the  complainant's  person  by  violence,  feloniously, 
the  offense  is  established  as  having  been  committed  by  some- 
body." 

"  To  the  order  of  the  court  overruling  the  motion,  and  to  the 
above  instructions  of  the  judge,  and  to  his  omission  to  instruct 
the  jury  that  they  could  find  the  respondents  guilty  of  any 
offense  less  than  robbery,  the  respondents  except  by  their 
attorneys." 


1].'  ■  i' 


C.  A.  Bailey,  County  Attorney,  for  the  State. 
Jasper  Ilutchings  and  P.  II.  GiUin^  for  defendants. 

"WiiiTEHousE,  J.  The  defendants  were  found  guilty  of  the 
crime  of  robbery  on  an  indictment  under  chapter  250  of  the 
statute  of  1880,  entitled,  "  An  act  to  define  robbery  and  its  pun- 
ishment," which  reads  as  follows :  "  Whoever  by  force  and 
violence  or  by  putting  in  fear,  feloniously  steals  and  takes  from 
the  person  of  another,  property  that  is  the  subject  of  larceny, 
is  guilty  of  robbery,  and  shall  be  punished  by  imprisonment 


I 


'^^^f^* 


STATE  V.  PERLEY   ET  AL. 


601 


exception 


that  thov 
^ny  offense 

>na«lo  by 
counsel  on 

set  up  at 

any  less 
^ffe  on  that 
le  charg-e  : 
?nt  oftJie 
may  be  as 
any  term 

itlge  made 
e  govern- 

from  liini 
'y  were  all 
hem  were 

how  suc- 

f  any  was 

loniously, 

by  some- 

md  to  the 
>  instruct 
y  of  any 
by  their 


r  of  tlie 
)  of  the 
its  pun- 
fce  and 
es  from 
arceny, 
)nment 


for  life  or  for  any  term  of  years."  This  act  of  1889,  however, 
did  not  modify  the  definition  of  robbery,  as  found  in  Rev.  St., 
c.  118,  §  16,  but  only  changed  and  simplified  the  provisions  of 
that  section  respecting  the  punishment. 

It  is  charged  in  the  indictment  that  the  respondents  "  felo- 
niously an  assault  did  make,  and  him,  the  said  John  II.  Emer- 
son, did  then  feloniously  put  in  fear,  and  with  force  and  vio- 
lence did  then  feloniously  steal,  take  and  carry  away  from  the 
person  of  him,  the  said  John  H.  Emerson,  certain  money  of 
the  said  John  H.  Emerson,  and  one  silver  watch  and  one  watch 
cliain  of  the  goods  and  chattels  of  the  said  John  H.  Emerson." 

After  the  verdict  the  defendants  filed  a  motion  in  arrest  of 
judgment,  based  on  four  specifications,  but  the  only  ground 
now  relied  upon  is  that  the  indictment  contains  no  allegation 
tiiat  the  money  or  the  watch  and  chain  therein  mentioned  had 
any  valne. 

It  is  a  principle  of  natural  justice,  which  was  early  recog- 
nized as  a  fundamental  rule  of  the  common  law,  now  incorpo- 
rated into  our  constitution  as  a  guaranty  of  protection  to  indi- 
vidual rights,  that  in  all  criminal  prosecutions  the  accused  is 
entitled  to  "  demand  the  nature  and  cause  of  the  accusation  " 
against  him.  Const.,  art.  1.  No  person  can  be  held  to  answer 
to  a  criminal  charge  until  it  is  "  fully,  plainly,  substantially 
and  formally  described  to  him."  Every  material  fact  which 
serves  to  constitute  the  offense  must  be  expressed  with  reason- 
able fullness,  directness  and  precision.  The  purjwse  of  this  rule 
is  sufficiently  obvious.  It  is  to  inform  the  accused  of  the  exact 
charge  against  him,  and  enable  the  court  to  determine  whether 
the  facts  alleged  constitute  a  crime,  and  on  proof  of  them  to 
render  such  appropriate  judgment  as  will  be  a  bar  to  any 
future  prosecution  for  the  same  offense.  3  Starkie,  Ev.,  1527; 
Com  V.  Pray,  13  Pick.  359.  "  The  doctrine  of  the  court,"  says 
Mr.  Bishop,  "  is  identical  with  that  of  reason,  viz.,  that  the 
indictment  must  contain  an  allegation  of  every  fact  which  is 
legally  essential  to  the  punishment  to  be  inflicted."  1  Bish. 
Cr.  Proc.  §  81.  It  is  plain,  however,  that  much  of  the  useless 
tautology  and  wearisome  prolixity  which  characterized  indict- 
ments in  the  early  period  of  criminal  procedure  can  be  safely 
avoided  without  any  infringement  of  this  sacred  right  of  the 
citizen.  It  is  the  policy  of  our  modern  courts  to  encourage  a 
more  rational  system  of  pleading,  with  greater  directness  and 


e 


508 


AMERICAN  CRIMINAL  REPORTS. 


l! 


t 


i-'L 

tmmi 


simplicity  of  statement,  with  less  verbiage  and  needless  ref)c- 
tition,  and  with  greater  regard  for  the  construction  and  idioms 
of  the  English  than  for  those  of  the  T^atin  language.  In  rea- 
son, an  indictment  is  best,  says  Mr.  Bishop,  when  it  is  "  in  the 
fewest  and  aptest  word^,  with  no  superfluous  matter; "  and 
while,  under  ordinary  circumstances,  it  would  not  be  judicious 
to  omit  anything  concerning  the  necessity  of  which  a  question 
may  be  raised  to  embarrass  the  trial,  on  the  other  hand,  no 
allegation,  and  ordinarily  no  word,  should  be  introduced  which 
is  certainly  needless.    Bish.  Dir.  &  Forms,  §§  10,  35. 

In  the  case  at  bar,  if  the  value  of  the  property  named  in  the 
indictment  is  not  a  necessary  ingredient  of  the  offense  sought 
to  be  charged,  and  is  not  '*  legally  essential  to  the  punishment 
to  be  inflicted,"  an  allegation  of  it  is  "  certainly  useless,"  and 
properly  omitted.  The  precise  point  has  never  before  been 
raised  in  this  state,  and  the  court  is  now  at  liberty  to  deter- 
mine it  in  accordance  with  the  plain  philosophy  of  the  question, 
and  the  true  science  of  pleading. 

The'  indictment  charges  the  offense  in  the  language  of  the 
statute  as  far  as  permissible  under  the  rule  requiring  a  specifi- 
cation of  the  property,  and  other  identifying  particulars.  It 
does  not  state,  generally,  that  the  defendants  took  "  ])roperty 
that  is  the  subject  of  larceny,"  but,  sjiecifically,  that  they  took 
*•  certain  money  and  one  silver  watch  and  watch  chain,"  which 
are  declared  by  Rev.  St.  c.  120,  §  1,  to  be  subjects  of  larccn\ 
It  must  be  observed  that  there  is  no  provision  of  Iiis  catute 
which  makes  the  amount  of  property  taken  a  cial  ele- 

ment of  the  offense;  and  there  is  no  statute  in  ti  uite  which 
creates  degrees  in  robbery,  or  in  any  way  make.,  the  punish- 
ment of  the  offense  dependent  upon  the  value  of  the  pn  "Tty 
taken. 

^or  is  there  anything  in  the  nature  of  robbery,  as  defined 
by  the  common  law,  from  which  it  appears  that  the  value  of 
the  property  has  ever  been  deemed  of  the  essence  of  the  crime. 
Blackstone  defines  it  to  be  "  the  felonious  and  forcible  taking 
from  the  person  of  another  of  goods  or  money,  to  any  value, 
by  violence,  or  putting  him  in  fear."  (4  Bl.  Comm.  242.)  And 
all  the  authorities  agree  that  the  taking  may  be  of  money  or 
goods  "  of  any  value."  The  value  of  the  property  is  therefore 
quite  immaterial.  "  A  penny  as  well  as  a  pound,  forcibly 
extorted,  makes  a  robbery,  the  gist  of  the  offense  being  the 


STATE  V.  PERLEY  ET  AL. 


609 


II088  repe- 
nt! ulioiiis 
In  rca- 
is  "  in  the 
'ter; "  an<l 
judicious 
question 
Jiand,  no 
sed  which 

led  in  the 
10  sou^rht 
nishnient 
ess,"  and 
fore  been 
to  deter- 
question, 

re  of  the 
a  si)ecifi- 
ilars.  It 
property 
hoy  took 
I,"  which 

larceny 
s    iatuto 

tial  ele- 
te  which 

piiiiish- 
m  pcrty 

defined 
^alue  of 
e  crime. 
I  taking 
r  value, 
)   And 
>ney  or 
erefore 
orcibly 
ng  the 


force  and  terror."  2  Arch.  Cr.  PI.  &  Pr.  1287;  3  Co.  Inst.  G9; 
1  Hale  P.  0.  632;  1  Hawk.  P.  C.  212. 

True  robbery  is  characterized  by  the  common  law  as  com- 
|)ound  or  aggravated  larceny.  It  is  "  larceny  committed  by 
violence  from  the  person  of  one  put  in  fear."  2  Bish.  Cr.  Law, 
§  1150.  And  it  is  the  well  settled  general  doctrine  that  in- 
dictments for  larceny  must  allege  the  value  of  the  article 
alleged  to  have  been  stolen.  It  is  conceded,  however,  that  this 
rule  had  its  origin  in  the  practice  of  distinguishing  between 
grand  and  petit  larceny  with  reference  to  the  extent  of  the 
|)unishment,  that  being  dependent  in  some  measure  upon  the 
value  of  the  article  stolen;  and  it  is  still  maintained  because, 
under  our  statutes,  the  punishment  for  larceny  is  also  gradu- 
ated with  reference  to  the  value  of  the  property  stolen.  2 
Arch.  Cr.  PI.  &  Pr.  1149,  and  note;  Hope  v.  C<mi.^  9  Mete. 
(Mass.)  134;  2  Bish.  Cr.  Proc.  §  713;  Rev.  St.  c.  120,  §  1.  But 
where  the  value  is  not  essential  to  the  punishment,  it  need 
not  be  distinctly  alleged  or  proved.  The  jury  must  be  satis- 
fied, however,  that  the  goods  were  of  some  value,  and  they 
may  infer  it  without  separate  proof,  either  from  the  inspection 
of  the  articles,  or  from  the  description  of  them  by  the  wit- 
nesses. 2  Bish.  Cr.  Proc.  §  751;  Com  v.  Burke,  12  Allen,  182; 
Com.  V.  Lawless,  103  Mass.  425;  State  v.  Gerrish,  78  Me.  20;  2 
Atl.  129.  Upon  this  point,  Mr.  Archbold  says:  "Since  the 
distinction  between  grand  and  petty  larceny  was  abolished,  it 
seems  to  have  been  no  longer  necessary  to  insert  the  value  of 
the  article  stolen  in  indictments,  except  for  stealing  to  the 
value  of  £5  in  a  dwelling  house.  It  was  said,  indeed,  by  some, 
to  be  necessary  to  show  that  the  thing  was  of  some  value,  but 
this  was  sulficiently  shown  by  stating  it  to  be  of  the  goods  and 
chattels  of  the  prosecutor.  As  it  can  be  of  no  use,  therefore, 
in  any  case,  to  insert  it  where  the  value  or  price  is  not  of  the 
(issence  of  the  offense,  and  as  St.  14  &  15  Vict.  §  24,  c.  100, 
sanctions  its  omission  in  all  other  cases,  I  have,  in  practice, 
omitted  to  insert  it,  except  in  the  simple  case  above  men- 
tioned."   2  Arch.  Cr.  PI.  &  Pr.  1153. 

It  is  still  urged,  however,  that,  upon  the  theory  that  robber}^ 
is  an  aggravated  larceny,  an  indictment  for  robbery  should 
contain  the  allegation  of  value,  to  authorize  a  conviction  of 
larceny  in  the  event  of  a  failure  to  prove  the  aggravation.  But 
this  suggestion  is  sufficiently  answered  by  the  statute  creating 


510 


AMERICAN  CRIMINAL  REPORTS. 


a  distinct  offense  of  larceny  from  the  person,  the  punishment 
of  which  does  not  depend  upon  the  value  of  the  pro])erty 
stolen.  Rev.  St.  c.  120,  §  4.  In  Com.  v.  McDmiald,  5  Cush. 
365,  the  court  says  respecting  this  offense : 

"As  the  punishment  for  stealing  from  the  person  does  not 
depend  on  the  amount  stolen,  there  was  no  occasion  for  any 
allegation  of  value."  This  is  cited  with  approval  in  the  note 
to  2' Arch.  Cr.  PI.  &  Pr.  1150;  and  in  Com.  v.  Burke,  12  Allen, 
IS 2,  the  precise  point  was  directly  raised  and  determined  in 
accordance  with  the  dictum  in  Com.  v.  McDonald,  »upra.  It, 
is  clear,  therefore,  that  in  an  indictment  for  robbery  no  allega- 
tion of  value  can  be  necessary  to  justify  a  conviction  of  the 
minor  offense  upon  failure  to  prove  the  aggravation. 

Many  other  authorities  may  be  cited  in  support  of  the  prop- 
osition, so  strongly  sustained  by  reason,  that  an  indictment  for 
robber}'  is  sufficient  without  an  averment  of  the  value  of  the 
property  taken.  In  State  v.  Ilowerton,  58  Mo.  581,  the  court 
says  respecting  this  crime  :  "  The  value  of  the  thing  taken  is 
not  of  the  essence  of  the  offense.  The  putting  in  fear  and  tak- 
ing the  property  constitute  the  gist  of  the  crime,  and  there  is 
no  necessity  for  either  charging  in  the  indictment  or  provintjj 
at  the  trial  or  specifying  in  the  verdict  the  value  of  the  prop- 
erty." In  State  V.  Burke,  73  N.  C.  83,  it  is  said  to  be  unneces- 
sary to  allege  the  value  of  the  property,  "  since  force  or  feai' 
is  the  main  element  of  the  crime."  See,  also,  Whart.  Cr.  Law 
(9th  Ed.),  §  857;  StaU  v.  McCunc,  5  R.  I.  60;  70  Am.  Dec.  ISO, 
and  note;  James  v.  State,  53  Ala.  380;  Williams  v.  State,  10 
Tex.  App.  8. 

The  reasoning  of  the  court  in  Com  v.  Cahill,  12  Allen  540, 
is  not  in  harmony  with  Com.  v.  McDonald,  and  Cam.  v.  Burke, 
supra,  from  the  same  state,  and  can  not  be  adopted  by  this 
court. 

The  other  objections  raised  by  the  defendants'  exceptions  are 
not  insisted  upon,  and  are  obviously  without  merit. 

Exceptions  overruled. 


mi 


~fi{? 


Note.— W%a<  constitutes.— To  constitute  the  crime  of  robbery  by  forcibly 
taking  money  from  the  person  of  its  owner,  it  is  not  necessary  tliat  violence 
to  the  person  of  the  owner  should  precede  the  taking  of  the  money.  It  is 
sufficient  if  it  be  contemporaneous  with  the  taking. 

Nice  questiona  may  and  do  arise  as  to  just  when  the  possession  of  the 
owner  of  articles  r\ot  attached  to  his  person,  but  under  his  immediate  charge 


bishment 

property 

5  Cush. 

does  not 
|n  for  any 

the  note 
1 12  Allen, 
rmined  in 
fiipra.  It, 
Ino  alloga- 
|on  of  the 

the  prop- 
tment  for 
ue  of  the 
tlie  court 
g  taken  is 
r  and  tak- 
d  there  is 
[•  provinff 
tlie  prop- 
e  unneces- 
3e  or  fear 
;.  Cr.  Law 
Dec.  ISO, 
iStaiey  10 

Lllen  540, 

I  by  this 

tions  are 


THE  QUEEN  v.  RUSSETT. 


511 


and  control,  fa  divested;  and  it  may  well  be  doubted  whether  a  thief  can  be 
said  to  have  taken  peaceable  possession  of  money,  or  other  tiling  of  value, 
in  the  presence  of  the  owner,  when  the  taking  is  instantly  resisted  by  the 
owner,  before  the  thief  is  able  to  remove  it  from  ids  premises,  or  from  his 
immediate  presence.  Bish.  Cr.  Law  (new),  §  J 167;  2  Whart.  Cr.  Law,  §  850; 
Ross,  Larceny,  §  446;  State  v.  McCtme,  SRI.  60;  Jackson  v.  State,  69 
Ala.  249. 

The  taking  ox  money  or  goods  from  the  presence  or  view  of  another  by 
violence  or  by  putting  him  in  fear  is  within  the  definition  of  robbery;  it  is 
the  action  of  feloniously  and  forcibly  taking  from  the  person  of  another 
goods  or  money  by  violence  or  putting  him  in  fear.  Re  Ezeta  { D.  C.  N.  D. 
Cal.)  62  Fed.  Rep.  972. 

It  is  not  essential  to  the  crime  of  robbery  that  the  property  be  taken  from 
the  boily  of  the  person  robbed,  but  it  is  sufficient  if  it  was  taken  from  his 
pei*sonal  presence  or  personal  protection.    Hill  v.  State,  42  Neb.  503. 

Robbery  may  be  consummated  by  assault  or  violence  against  the  person 
from  whom  money  is  taken,  and  it  is  not  essential  that  such  pei*son  should 
have  been  put  in  fear  of  death  or  serious  bodily  harm.  Pendey  v.  State 
(Tex.  Crim.  App.),  31  S.  W.  647. 

The  taking  of  property  from  the  person  constitutes  robbery,  and  not 
theft  from  the  person,  where  force  or  violence  is  used  or  the  assaulted 
l-arty  is  put  in  fear  of  life  or  bodily  injury.  Oallagherv.  State  (Tex.  Cr. 
App.),  30  S.  W.  557. 

The  acts  by  which  money  is  taken  from  the  possession  of  a  person  are  not 
prevented  from  constituting  robbery  by  the  fact  that  he  was  induced  by 
false  pretenses  of  the  accused  to  draw  his  money  from  the  bank.  State  v. 
Leroy,  126  Mo.  554. 

Pleading  and  proof. — On  trial  for  robbery,  evidence  that  the  prosecut- 
ing witness  had  in  his  possession,  shortly  before  the  alleged  robbery,  money 
of  the  value  and  description  of  that  charged  to  have  been  taken,  is  admis- 
sible.   1  Tayl.  Evi.,  §§  835,  836;  Bradley  v.  State  (Ala.),  15  So.  640. 

On  a  charge  of  robbery,  if  it  appears  that  the  defendant  made  an  assault 
on  the  person  alleged  to  have  been  robbed,  and  against  his  will,  took  from 
his  person  his  money,  goods  or  other  valuable  thing,  by  force  or  intimida- 
tion, the  ofifense  of  robbery  is  shown.  The  gist  of  this  offense  is  the  force 
or  intimidation  and  the  taking  from  the  person,  against  his  will,  a  thing 
of  value  belonging  to  the  person  assailed.  In  such  case  it  is  not  material 
to  accurately  describe  or  prove  the  particular  identity  or  value  of  the 
property  taken,  further  than  to  show  it  was  the  property  of  the  person  as- 
saulted, or  in  hia  care  and  hands,  and  of  value. 


y  forcibly 
t  violence 
ley.    It  is 

on  of  the 
ite  cliarge 


The  Queen  v.  Kussett. 

(2  Q.  B.  Div.  (1892)  812.) 

Larceny  by  a  Tkick:    Possession  obtained  by  fraud. 

Where  the  owner  of  money  or  goods  parts  with  the  possession  of  them 
under  a  contract  Induced  by  fraud,  but  does  not  intend  to  part  with  the 
property  in  them  until  the  other  party  to  the  contract  has  fullilled  his 


m 


'( t 


I 


512 


AMERICAN  CRIMINAL  REPORTS. 


part  of  the  bargain,  the  person  so  fraudulently  obtaining  posssssion  of 
the  money  or  goods  may  be  convicted  of  larceny. 
2.  The  prisoner  agreed  at  a  fair  to  sell  a  horse  to  the  prosecutor  for  23/.,  of 
which  8{.  was  to  be  paid  to  the  prisoner  at  once,  and  the  remuindcr 
uix>n  the  delivery  of  the  horse.  The  prosecutor  handed  8/.  to  the  pris- 
oner, who  signed  a  receipt  for  the  money;  by  the  receipt  it  was  stated 
that  the  balance  was  to  be  paid  upon  delivery.  The  prisoner  never  de- 
livered the  horse  to  the  prosecutor,  but  caused  it  to  be  removed  from 
the  fair  under  circumstances  from  wliich  the  jury  inferred  that  he  liad 
never  intended  to  deliver  it.  Held,  that  the  prisoner  was  rightly  con- 
victed of  larceny  by  a  trick. 

Case  stated  by  the  deputy  chairman  of  the  Gloucestershire 
Quarter  Sessions. 

The  prisoner  was  tried  and  convicted  upon  an  indictment, 
charging  him  with  having  feloniously  stolen  on  March  2t>, 
1892,  the  sum  of  8^.  in  money  of  the  moneys  of  James  Brother- 
ton.  It  appeared,  from  the  facts  proved  in  evidence,  that  on 
the  day  in  question  the  prosecutor  attended  the  Winchcomb 
fair,  where  he  met  the  prisoner,  who  offered  to  sell  him  a  horse 
for  24Z.;  he  subsequently  agreed  to  purchase  the  horse  for  23/., 
SI.  of  which  was  to  be  paid  down  and  the  remaining  15Z.  was 
to  be  handed  over  to  the  prisoner,  either  as  soon  as  the  prose- 
cutor was  able  to  obtain  the  loan  of  it  from  some  friend  in  the 
fair  (which  he  expected  to  be  able  to  do)  or  at  the  prosecutor's 
house  at  Little  Hampton,  where  the  prisoner  was  told  to  take  the 
horse,  if  the  balance  of  15/.  could  not  be  obtained  in  the  fair. 
The  prosecutor,  his  son,  the  prisoner  and  one  or  two  of  his 
companions,  then  went  into  a  public  house,  where  an  agree- 
ment in  the  following  words  was  written  out  by  one  of  the 
prisoner's  companions,  and  signed  by  prisoner  and  prosecutor : 
"  26th  March,  G.  Russett  sell  to  Mr.  James  and  Brother  (sic), 
brown  horse  for  the  sum  of  23/.  Os.  Od.;  Mr.  James  and  Brother 
pay  the  sum  of  8/.,  leaving  a  balance  due  15Z.  Os.  Od.,  to  be  paid 
on  delivery."  The  signatures  were  written  over  an  ordinary 
penny  stamp.  The  prosecutor  thereupon  paid  the  prisoner  8?. 
The  prosecutor  said,  in  the  course  of  his  evidence  :  "  I  never 
expected  to  see  the  8/.  back,  but  to  have  the  horse."  The  pris- 
oner never  gave  the  prosecutor  an  opportunity  of  attempting 
to  borrow  the  15/.,  nor  did  he  ever  take  or  send  the  horse  to 
the  prosecutor's  house;  but  he  caused  it  to  be  removed  from 
the  fair  under  circumstances  from  which  the  jury  inferred  that 
he  had  never  intended  to  deliver  it 


^[  it' 


THE  QUEEN  v.  RUSSETT. 


513 


session  of 

■for  23/.,  of 

remainder 
|to  the  pris- 
mas stated 
pr  never  do 
jioved  from 
|that  he  liad 
■Jehtly  con- 


3stershire 

rlictment, 
arch   2(!, 
Brother- 
>  that  on 
nchcomb 
n  a  horse 
for  231., 
^^l.  was 
he  prose- 
ncl  in  the 
vsecu  tor's 
'take  the 
the  fair. 

>  of  his 
n  agree- 

>  of  the 
Jecutor  : 
"or  (sic), 
Brother 
be  paid 
'■(linary 
oner  8/. 

never 
Ije  pris- 
npting 
)rse  to 
I  from 
id  that 


It  was  objected  on  behalf  of  the  prisoner  that  there  was  no 
evidence  to  go  to  the  jury  on  the  ground  that  the  prosecutor 
parted  absolutely  with  the  81.,  not  only  with  the  possession  but 
with  the  property  in  it,  and,  consequently,  that  the  taking  by 
the  prisoner  was  not  larceny,  but  obtaining  money  by  false  pre- 
tenses, if  it  was  a  crime  at  all.  The  objection  was  overruled.  In 
summing  up,  the  deputy-chairman  directed  the  jury  that  if  they 
were  satisfied  from  the  facts  that  the  prisoner  had  never 
intended  to  deliver  the  horse,  but  had  gone  through  the  form 
of  a  bargain  as  a  device  by  which  to  obtain  the  prosecutor's 
money,  and  that  the  prosecutor  would  never  have  parted  with 
his  SI.,  had  he  known  what  was  in  the  prisoner's  mind,  they 
should  find  the  prisoner  guilty  of  larceny.  The  question  for 
the  court  was,  whether  the  deputy-chairman  was  right  in  leav- 
ing the  case  to  the  jury. 

Gynne  James,  for  the  prisoner.  The  conviction  was  wrong. 
The  only  offense  disclosed  was  that  of  obtaining  money  by 
false  pretenses.  There  was  no  evidence  to  go  to  the  jury  upon 
a  charge  of  larceny.  The  property  of  the  money  passed  to  the 
prisoner  at  the  time  it  was  handed  to  him  by  the  prosecutor, 
who  admittedly  never  expected  to  see  it  again;  the  receipt 
given  for  the  money  is  strong  evidence  of  the  change  of  prop- 
erty. The  case  is  distinguishable  from  Ueg.  v.  Buchnastcr,  20 
Q.  B.  D.  182,  for  in  that  case  the  question  was  whether  the 
prosecutor  expected  to  have  his  money  back.  There  is  in  the 
present  case  a  breach  of  contract,  for  which  the  prosecutor  has 
a  civil  remedy,  and  it  is  immaterial  that  the  prisoner,  in  mak- 
ing the  contract,  had  a  fi-audulent  intent — Hex  v.  Harvey, 
1  Leach  407 — for  the  fact  that  the  contract  was  induced  by 
fraud  did  not  render  the  contract  void,  or  prevent  the  property 
from  passing.  Glouyh  v.  London  and  Great  Western  Ry.  Co., 
Law  Rep.  7,  Ex.  at  p.  34.  The  principle  of  law  is  stated  in  Ros- 
coe's  Criminal  Evidence,  11th  Ed.,  at  p.  620,  where  it  is  said : 
"  The  doctrine  is  clearly  established  that  if  the  owner  intends 
to  part  with  the  property  in  the  goods,  and  in  pursuance  cf 
such  intention  delivers  the  goods  to  the  prisoner,  who  takes 
them  away,  and  the  property  becomes  his,  this  is  not  larceny, 
even  though  the  prisoner  has  from  the  first  a  fraudulent  inten- 
tion." 

Stroud,  for  the  prosecution,  was  not  called  upon. 
8» 


1 1 

I 


i* 


IHi 


It;- 


ly. 


5U 


AMERICAN  CRIMINAL  REPOPTS. 


i    ■' 

I 


is 


1   hll  . 


LoED  Coleridge,  C.  J.     I  am  of  the  opinion  that   the  con- 
viction must  be  supported.     The  principle  which  underlies  the 
distinction  between  larceny  and  false  pretenses  has  been  laid 
down  over  and  over  again,  and  it  is  useless  for  us  to  cite  cases 
where  the  facts  are  not  precisely  similar,  tt'hen  the  principle  is 
always  the  same.     When  the  question  is  approached,  it  will  be 
found  that  all  the  cases,  with  the  possible  exception  of  J^cx  o. 
Harvey,  1  Leach  467,  as  to  which  there  may  be  some  slight 
doubt,  are  not  only  consistent  with,  but  are  illustrations  of  the 
principle,  which  is,  shortly,  this  :  if  the  possession  of  the  mone\' 
or  goods  said  to  have  been  stolen,  has  been  parted  with,  but 
the  owner  did  not  intend  to  part  with  the  property  in  them,  so 
that  part  of  the  transaction  is  incomplete,  and  the  parting  with 
the  possession  has  been  obtained  by  fraud — that  is  larceny. 
This  seems  to  me  not  only  good  law,  but  good  sense,  and  this 
principle  underlies  all   the  cases.     If,  however,  authority  be 
wanted,  it  is  to  be  found  in  two  cases  which  we  could  not  over 
rule  without  the  very  strongest  reason  for  so  doing;  the  lirst 
is  Reg.  v.  McKale,  Law  Eep.  1  C.  C.  125,  where  Kelly,  L.  C.  B., 
said :   "  The  distinction  between  fraud  and  larceny  is  well  estab- 
lished.    In  order  to  reduce  the  taking,   under  such  circum- 
stances as  in  the  present  case,  from  larceny  to  fraud,  the  trans- 
action must  be  complete.     If  the  transaction  is  not  complete, 
if  the  owner  has  not  parted  with  the  property  in  the  thing,  and 
the  accused  has  taken  it  with  a  fraudulent  intent,  that  amounts 
to  larceny."    The  distinction,  in  which  I  entirely  concur,  is  then 
expressed  in  felicitous  language  by  a  very  good  authority.     The 
other  case  is  that  of  Hex  v.  Buckmaster,  20  Q.  B.  D.  182,  which 
seems  to  me  directly  in  point;  the  decision  was  grounded  on 
Rex  V.  Oliver,  2  Eussell  on  Crimes  170,  and  Rex  v.  Robeson, 
Russ.  &  By.  413,  when  the  same  principle  was  applied  and  the 
same  conclusion  arrived  at. 


Pollock,  B.  I  agree  in  the  conclusion  at  which  the  court 
has  arrived,  and  would  add  nothing  to  the  judgment  of  my 
lord,  but  that  I  wish  it  to  be  understood  that  this  case  is 
decided  on  a  ground  which  does  not  interfere  with  the  rule  of 
law  which  has  been  so  long  acted  on,  that  when  the  prosecutor 
has  intentionally  parted  with  the  property  in  his  money  or  goods, 
as  well  as  with  their  possession,  there  can  be  no  larceny.  My 
mind  has,  therefore,  been  directed  to  the  facts  of  the  case,  in  order 


THE  QUEEN  v.  RUbSETT. 


t  the  con- 
itlerlies  the 
s  been  laid 
0  cite  cases 
principle  is 
J,  it  will  be 

of  I^CX  V. 

iome  slight 
;ions  of  the 
the  money 
with,  but 
in  them,  so 
irting  with 
is  larceny, 
e,  and  this 
thority  be 
ti  not  over- 
?;  the  first 

y,L.c.B., 

well  estab- 
;h  circum- 
,  the  trans- 
complete, 
thing,  and 
t  amounts 
ur,  is  then 
ity.    The 
82,  which 
unded  on 
Ji'oleeoft, 
J  and  the 


the  court 
t  of  mv 
3  case  is 
e  rule  of 
osecutor 
)r  goods, 
ly.  My 
in  order 


515 


to  see  whether  the  prosecutor  parted  with  his  money  in  the  sense 
that  he  intended  to  part  with  the  property  in  it.  In  my  opin- 
ion he  certainly  did  not.  This  was  not  a  case  of  a  payment 
made  on  an  honest  contract  for  the  sale  of  goods  which  event- 
ually may,  from  some  cause,  not  be  delivered,  or  a  contract 
for  a  sale  of  a  chattel  such  as  in  Jiex  v.  Ilarmy,  1  Leach  467. 
From  the  first  the  prisoner  had  the  studied  intention  of  defraud- 
ing the  prosecutor;  he  put  forward  the  horse  and  the  contract, 
and  the  prosecutor,  believing  in  his  hona  fides,  paid  him  8^., 
intending  to  complete  the  purchase  and  settle  up  that  night. 
Tlie  prisoner  never  intended  to  part  with  the  horse,  and  there 
was  no  contract  between  the  parties.  The  money  paid  by  the 
prosecutor  was  no  more  than  a  payment  on  account. 

Hawkins,  J.  I  am  entirely  of  the  same  opinion.  In  my 
judgment  the  money  was  merely  handed  to  the  prisoner  by 
way  of  deposit,  to  remain  in  his  hands  until  completion  of  the 
transaction  by  delivery  of  the  horse.  He  never  intended,  or 
could  have  intended,  that  the  prisoner  should  take  the  money 
and  hold  it,  whether  he  delivered  the  horse  or  not.  The  idea 
is  absurd;  his  intention  was  that  it  should  be  held  temporarily 
by  the  prisoner  until  the  contract  was  completed,  while  the 
prisoner  knew  well  that  the  contract  never  w^ould  be  com- 
])leted  by  delivery;  the  latter,  therefore,  intended  to  keep  and 
steal  the  money.  Altogether  apart  from  the  cases  and  from 
the  principle  which  has  been  so  frequently  enunciated,  I  should 
not  have  a  shadow  of  doubt  that  the  conviction  was  right. 

A.  L.  SMrni,  J.  The  question  is  whether  the  prisoner  has 
been  guilt}'  of  larceny  by  a  trick  or  that  of  obtaining  money 
by  false  pretenses;  it  has  been  contended  on  his  behalf  that 
he  could  only  have  been  convicted  on  an  indictment  charging 
the  latter  offense;  but  I  can  not  agree  with  that  contention. 
The  diffei'ence  between  the  two  offenses  is  this :  if  possession 
only  of  money  or  goods  is  given,  and  the  property  is  not  in- 
tended to  pass,  that  may  be  larceny  by  a  trick;  the  reason  be- 
ing that  there  is  a  taking  of  the  chattel  by  the  thief  against 
the  will  of  the  owner;  but  if  possession  is  given  and  it  is  in- 
tended by  the  owner  that  the  property  shall  also  pass,  that  is 
not  larceny  by  a  trick,  but  may  be  false  pretenses,  because  in 
that  case  there  is  no  taking,  but  a  handing  over  of  the  chattel 


II 


i  ,  r 


''li 


p 


i:^ 


!. 


i!iltL:;ii 


516 


AMERICAN  CRIMINAL  REPORTS. 


by  the  owner.  This  case,  therefore,  comes  to  be  one  of  fact, 
and  we  have  to  see  whether  there  is  evidence  that,  at  the  time 
the  8^.  was  handed  over,  the  prosecutor  intended  to  pass  to  the 
prisoner  the  property  in  that  sum,  as  well  as  to  give  posses- 
sion. I  need  only  to  refer  to  the  contract,  which  provides  for 
payment  of  the  balance  on  delivery  of  the  horse,  to  how  im- 
j)ossible  it  is  to  read  into  it  an  agreement  to  pay  8^.  to  the 
prisoner  whether  he  gave  delivery  of  the  horse  or  not;  it  was 
clearly  only  a  deposit  by  way  of  part  payment  of  the  price  of 
the  horse,  and  there  was  ample  evidence  that  the  prosecutor 
never  intended  to  part  with  the  property  in  the  money  when 
he  gave  it  into  the  prisoner's  possession. 

"Wills,  J.  I  am  of  the  same  opinion.  As  far  as  the  prisoner 
is  concerned  it  is  out  of  the  question  that  he  intended  to  enter 
into  a  binding  contract;  the  transaction  was  a  mere  sham  on 
his  part.  The  case  is  not  one  to  which  the  doctrine  of  false 
pretenses  will  apply,  and  I  agree  with  the  other  members  of 
the  court  that  the  conviction  must  be  affirmed.  Conviction 
affirmed. 

Inclerman  <&  Broicn,  for  Smith  Winchcomb,  solicitors  for 
prosecution. 
H.  Lev)is,  Cheltenham,  solicitor  for  prisoner. 

Note. — Wliat  constitutes. — If,  by  means  of  any  trick  or  artifice,  the 
owner  of  property  is  induced  to  part  with  the  possession  only,  still  nieaninf^ 
to  retain  the  right  of  property,  the  taking  by  such  means  will  amount  to 
larceny;  but  if  the  owner  part  with  not  only  the  possession  of  the  goods, 
but  the  right  of  property  in  them  also,  the  offense  of  the  party  obtaining 
them  will  not  be  larceny,  but  obtaining  goods  by  false  pretenses.  People 
V.  Berlin,  9  Utah  383. 

On  the  facts  there  must  often  be  a  very  narrow  margin  between  cases  of 
larceny,  obtaining  money  by  false  pretenses,  and  embezzlement,  because 
the  character  of  the  crime  depends  upon  the  becret  intention  of  the  parties, 
which  is  often  difficult  to  ascertain;  but,  so  far  as  the  law  is  concerned,  the 
principles  upon  which  the  question  of  guilt  or  innocence  is  to  be  determined 
are  too  plain,  and  well  settled  to  justify  a  review  of  the  authorities.  Where 
one  honestly  receives  the  possession  of  goods  upon  a  trust,  and,  after  receiv- 
ing them,  fraudulently  converts  them  to  his  own  use,  it  is  a  case  of 
embezzlement.  If  the  possession  has  been  obtained  by  fraud,  trick,  or  de- 
vice, and  the  owner  of  it  intends  to  part  with  his  title  when  he  gives  up 
possession,  the  offense,  if  any,  is  obtaining  money  by  false  pretenses.  But 
where  the  possession  has  been  obtained  through  a  trick  or  device,  with  the 
intent,  at  Uie  time  the  party  receives  it,  to  convert  the  same  to  liis  own 


>n<?  of  fact, 
I  at  the  time 
'  pass  to  the 
?ive  posses- 
provides  for 

|to  how  im- 
8^.  to  the 

[not;  it  was 

|the  price  of 
prosecutor 

loney  when 

le  prisoner 
ed  to  enter 
■e  sham  on 
'le  of  false 
leinbers  of 
Conviction 


icitors  for 


artifice,  tlic 
till  meaning 
amount  to 
the  goods, 
y  obtaining 
'es.    People 

?en  cases  of 
It,  because 
the  parties, 
kerned,  tlie 
letermined 
8.    Where 
ter  receiv- 
a  case  of 
ick,  or  de- 
gives  up 
'ses.    But 
with  tlie 
his  own 


AEP  V.  STATE. 


517 


use,  and  the  owner  of  the  property  parts  merely  with  the  possession,  and 
not  with  the  title,  the  oflfense  is  larceny.  It  is  a  question  for  the  jury  to 
decide,  whether  the  defendant  feloniously  took  the  property,  and  whether 
tlie  owner  intended  to  part  with  the  ownei-ship  of  the  same.  People  v. 
Johnson,  91  Cal.  265;  27  Pac.  668;  People  v.  Laurence,  137  N.  Y.  517;  Com. 
V.  Lannan,  158  Mass.  287. 

Larceny  may  exist,  though  the  possession  of  the  stolen  goods  is  obtained 
with  the  owner's  consent,  if  the  consent  is  procured  by  deception,  and  with 
the  intent  not  to  return  goods,  but  to  appropriate  them,  and  to  deprive  the 
owner  of  a  remedy  for  their  loss,    Fleming  v.  State,  29  Ind.  184. 

If  by  means  of  any  trick  or  artifice  the  owner  of  property  is  induced  to 
part  with  possession  only,  still  meaning  to  retain  the  riglit  of  property,  the 
taking  by  such  means  will  amount  to  larceny,  provided  it  be  done  animua 
furandi.    Com.  v.  Eichelberger,  119  Penn.  252;  7  Am.  Cr.  Rep,  324. 

For  the  distinction  between  larceny  and  cheating  by  false  pretenses,  see 
Russ,,  Crimes,  5th  Am,  Ed,  28;  7  Am,  Cr.  Rep.  327.  Larceny  from  person 
and  robbery  distinguished.  State  v.  Oraff,  66  Iowa  482;  5  Am,  Cr,  Rep. 
;it6.  If  possession  of  the  goods  is  obtamed  by  a  trick,  artifice  or  false  pre- 
tense, with  tlie  felonious  intent  on  the  part  of  the  accused  to  convert  them 
to  his  own  use,  lie  is  guilty  of  larceny.  State  v.  Hall,  76  Iowa  85;  8  Am. 
Cr.  Rep.  468.  Poaaesaion  obtained  by  fraud,  fully  discussed  in  note,  8  Am. 
Cr.  Rep.  464. 


Arp  V.  State. 


(97  Ala.  6.) 

Murder:   Duresa  of  third  peraona— Competency  of  jurors— Confesaiona. 

On  a  trial  for  murder,  after  defendant  testified  that  two  men  threatened  to 
take  his  life  unless  he  killed  deceased,  the  court  refused  to  instruct  the 
jury  that  if  defendant  killed  deceased  "under  threats  of  immediate  im- 
pending peril  to  his  own  life,  such  as  to  take  away  the  free  agency  of 
defendant,  then  he  is  not  guilty."  Held,  that  the  refusal  to  so  charge 
was  proper,  because,  aside  from  the  common-law  rule  that  taking  the 
life  of  an  innocent  jierdon  can  not  be  justified  on  a  plea  of  compulsion, 
the  charge  ignored  the  evidence  in  the  case  that  defendant,  after  being 
informed  by  the  men  that  he  must  kill  deceased,  went  with  them  some 
distance  to  deceased's  house  without  seeking  to  escape. 

Appeal  from  Circuit  Court,  Cherokee  County;  John  B.  Tally, 
Judge. 

Sherman  Arp  was  convicted  of  murder  in  the  first  degree, 
and  sentenced  to  be  hanged,  from  which  he  appeals.    Affirmed. 

Two  special  instructions  asked  by  defendant  were  refused 
the  first  is  copied  in  the  opinion,  and  the  second  in  the  follow- 


fit 


518 


AMERICAN   CRIMINAL  REPORTS. 


ing  language:  (2)  " If  the  jury  do  not  believe  from  the  evi 
dence  beyond  all  reasonable  doubt  that  the  defendant  killed 
deceased  from  a  present  impending  necessity,  or  from  belief 
of  a  present  impending  necessity,  then  he  is  not  guilty  of 
murder." 


R.  B.  Smyer,  for  api)ellant. 

Wm.  L.  Martin,  Atty.  Gen.,  for  the  State. 

Opinion  of  the  court  delivered  by  Coleman,  J.  At  the  July 
term,  1892,  of  the  circuit  court  the  defendant  was  convicted 
of  murder  in  the  first  degree,  and  sentenced  to  suffer  deatli, 
The  defendant  moved  to  quash  the  venire  summoned — First, 
because  some  of  the  jurors  summoned  on  the  special  venire  had 
served  as  regular  jurors  during  the  preceding  week;  second, 
because  William  Jackson,  who  was  summoned  as  a  regular 
juror  for  the  week,  had  not  been  a  resident  of  the  sUite  or 
county  for  the  preceding  twelve  months;  third,  because  one 
C.  II.  McCuUough,  whose  name  appears  on  the  venire,  served 
as  a  regular  juror  at  the  January  term,  1892.  These  several 
motions  were  properly  overruled.  Crim.  Code,  §  4301;  Field i^ 
V.  State,  52  Ala.  351;  Gihmn  v.  State,  89  Ala.  12G.  The  objec- 
tions to  the  impaneling  of  the  jury  were  as  follows :  First, 
that  one  of  the  jurors  drawn  failed  to  answer,  it  appearing 
that  said  juror  was  at  that  time  serving  as  a  juror  on  another 
case,  and  was  out  considering  that  case;  the  second  objection 
is  the  same  as  the  first;  third,  that  one  of  the  jurors  drawn 
had  not  been  a  resident  of  the  state  or  county  for  the  past 
preceding  twelve  months,  and  was  excused  for  cause;  fourth, 
that  one  of  the  persons  whose  name  was  drawn,  who  had  been 
summoned  to  serve  as  a  juror,  failed  to  answer  when  called; 
fifth,  that  one  of  the  persons  summoned  as  a  juror  was  over 
the  age  of  seventy,  who  was  challenged  by  the  state  for  cause; 
sixth,  that  one  of  the  persons  summoned,  on  his  examination 
as  to  his  competency,  stated  that  he  had  heard  a  part  of  the 
evidence  at  a  preliminary  examination  of  the  defendant,  and 
from  that  evidence  had  formed  an  opinion  as  to  the  guilt  or, 
innocence  of  the  defendant,  but  that,  in  his  judgment,  said 
opinion  would  not  bias  his  verdict.  Upon  this  statement,  the 
court  pronounced  the  person  competent  to  serve  as  a  juror. 
Each  of  these  objections  have  been  adjudicated  by  this  court 


iVi 


m 


ARP  V.  STA  TE. 


519 


and  declared  to  be  without  merit.  See  the  following  authori- 
ties: On  the  first  proposition,  Johnston  v.  /State,  10  South. 
Rep.  0G7,  and  authorities  cited;  on  the  third  proposition, 
Fields'  Case,  supra,  and  Gibson's  Case,  svpra;  on  the  fourth, 
Johnston  v.  State,  supra;  on  the  fifth,  Crira.  Code,  §  4331,  subd. 
8;  on  the  sixth,  Ilammil  v.  State,  90  Ala.  577.  Neither  of  the 
objections  is  within  the  principle  decided  in  the  case  of  Mc- 
Queen V.  State,  94  Ala.  52,  or  of  Darby  v.  State,  92  Ala.  9. 

The  confessions  of  the  defendant  were  voluntarily  made,  and 
were  properly  admitted.  Moreover,  the  defendant  himself, 
wlio  testified  in  his  own  behalf,  did  not  deny  they  were  vol- 
untarily made,  but  himself  testified  substantially  as  true  the 
main  fact  given  in  evidence  as  confessions.  The  testimony  of 
the  defendant  and  the  evidence  admitted  as  confessions  showed 
that  he  took  the  life  of  the  deceased  without  provocation  on 
the  part  of  the  deceased,  and  when  there  was  no  real  or  appar- 
ent necessity  for  the  act,  so  far  as  such  necessity  proceeded 
from  the  deceased.  According  to  his  own  statement,  the  object 
to  be  accomplished  by  taking  the  life  of  the  deceased  was  to 
prevent  deceased  from  appearing  as  a  witness  against  him  and 
one  Buckhalter  and  Leith,  charged  with  retailing  whisky  with- 
out a  license.  The  defendant's  excuse  for  the  homicide  was 
that  Buckhalter  and  Leith  threatened  to  take  his  life  unless  he 
killed  deceased;  that  they  were  present,  armed  with  double- 
barreled  shotguns,  and  threatened  to  kill  him  unless  he  killed 
deceased,  and  that  it  was  through  fear  and  to  save  his  own  life 
he  struck  deceased  with  an  axe.  He  admits  that  after  having 
struck  deceased  down,  ho  rifled  the  pockets,  and  took  what 
money  was  found  in  the  pockets  of  the  deceased.  On  this 
phase  of  the  evidence  the  court  was  asked  to  give  the  follow- 
ing charge :  "  If  the  jury  believe  from  the  evidence  that  the 
defendant  killed  Payne  under  duress,  under  compulsion  from 
a  necessity,  under  threats  of  immediate  impending  peril  to  his 
own  life,  such  as  to  take  away  the  free  agency  of  the  defend- 
ant, then  he  is  not  guilty."  The  court  refused  this  charge,  and 
the  refusal  is  assigned  as  error.  This  brings  up  for  consider- 
ation  the  question :  "What  is  the  law,  when  one  person,  under 
compulsion  or  fear  of  great  bodily  harm  to  himself,  takes  the 
life  of  an  innocent  person;  and  what  is  his  duty,  when  placed 
under  such  circumstances?  The  fact  that  defendant  had  been 
in  the  employment  of  Buckhalter  is  no  excuse.     The  command 


620 


AMERICAN  CRIMINAL  REPORTS. 


l'V,'-\i 


h 


:  i  •  f! 


of  a  superior  to  an  inferior,  of  a  parent  to  a  child,  of  a  master 
to  a  servant,  of  a  principal  to  his  agent,  will  not  justify  a  crim- 
inal act,  done  in  pursuance  of  such  an  act.  1  Bisli.  Grim.  Law, 
§  355;  Reese  v.  State,  73  Ala.  18;  4  Bl.  Comm.,  §  27.  In  a 
learned  discussion  of  the  question,  to  be  found  in  {Oo?ii.  v. 
Neal^  1  Lead.  Grim.  Gas.,  p.  81,  and  note,  page  91,  by  Bennett 
and  Ileard,  it  is  declared  that,  "for  certain  crimes  the  wife  is 
responsible,  although  committed  under  the  compulsion  of  lier 
husband.  Such  are  murder,"  etc.  To  the  same  effect  is  the 
text  in  14  Amer.  &  Eng.  Enc.  Law,  p.  649,  and  this  court  gave 
sanction  to  this  rule  in  Bibh  v.  State,  94  Ala.  31;  10  Souili  Re]). 
506.  In  Ohio  a  contrary  rule  prevails  in  regard  to  the  wife. 
Davis  V.  State,  15  Ohio  72.  In  Arkansas  tliere  is  a  statute 
specially  exempting  married  women  from  liability  when  "act- 
ing under  the  threats,  commands,  or  coercion  of  their  liusbands;" 
but  it  Avas  held  under  this  act,  there  was  no  presumption  in 
favor  of  the  wife  accused  of  murder,  and  that  it  was  incumbent 
on  her  to  show  that  the  crime  was  done  under  the  influence  of 
such  coercion,  threats,  or  commands.  Edwards  v.  State,  27 
Ark.  498,  reported  by  Green  in  1  Grim.  Law,  p.  741. 

In  the  case  of  Beat  v.  State,  72  Ga.  200,  and  also  in  the  case 
of  People  V.  Miller,  Q%  Gal.  468,  6  Pac.  Rep.  99,  the  question 
arose  upon  the  sufficiency  of  the  testimony  of  a  witness  to 
authorize  a  conviction  for  a  felony,  it  being  contended  that  the 
witness  was  an  accomplice.  In  both  cases  the  witness  was  un- 
der fourteen  years  of  age.  It  was  held  that  if  the  witness  acted 
under  threats  and  compulsion,  he  was  not  an  accomj)Iice.  The 
defendants  were  convicted  in  both  cases.  In  the  case  of  Hex 
V.  Crutchley,  5  Gar.  &  P.  133,  the  defendant  was  indicted  for 
breaking  a  threshing  machine.  The  defendant  was  allowed  to 
prove  that  he  was  compelled  by  a  mob  to  go  with  them,  and 
compelled  to  hammer  the  threshing  machine;  and  was  also 
permitted  to  prove  that  he  ran  away  at  the  first  opportunity. 
In  1  Hawk.  P.  G.,  o.  28,  §  26,  it  is  said :  "The  killing  of  an 
innocent  person  in  defense  of  a  man's  self  is  said  to  be  justifi- 
able in  some  special  cases;  as  if  two  be  shipwrecked  together, 
and  one  of  them  get  upon  a  plank  to  save  himself,  and  the 
other  also,  having  no  other  means  to  save  his  life,  get  upon 
the  same  plank,  and,  finding  it  not  able  to  support  them  both, 
thrusts  the  other  from  it,  whereby  he  is  drowned,  it  seems  that 
he  who  thus  preserved  his  own  life  at  the  expense  of  that 


ARP  V.  STATE. 


521 


|f  a  master 
'jfy  a  crim- 

'I'im.  Law. 

27.    In  a 

^y  i'eiinett 
jlio  wife  is 
jion  of  lier 
feet  is  tlie 
tJoui't  gave 
lioiuliRep. 

the  wife. 

a  statute 
hen  "act- 
usl)an(ls;" 
nption  in 
ncumbent 
fluence  of 
State,  27 

I  the  case 
question 
t'itness  to 
1  that  the 
s  was  un- 
less acted 
ice.     The 
e  of  Hex 
icted  for 
lowed  to 
»t>m,  and 
kvas  also 
)rtunity. 
?  of  an 
3  justili- 
ogether, 
and  the 
et  upon 
m  both, 
ms  that 
of  that 


otlior  may  justify  the  fact  by  the  inevitable  necessity  of  the 
case."  In  1  Hale,  P.  C,  c.  8,  pp.  49,  51,  it  is  said :  "  There  is 
to  bo  observed  a  difference  between  the  times  of  war  or  jmblic 
insurrection  or  rebellion;  *  *  *  when  a  person  is  under  so 
great  a  power  that  he  can  not  resist  or  avoid,  the  law  in  some 
cases  allows  an  impunity  for  parties  compelled  or  drawn  by 
fear  of  death  to  do  some  acts  in  themselves  capital,  which 
admit  no  excuse  in  time  of  peace.  ♦  *  ♦  Now,  as  to  times 
of  peace,  if  a  man  be  menaced  with  death,  unless  he  will  com- 
mit an  act  of  treason,  murder,  or  robbery,  the  fear  of  death  doth 
not  excuse  him  if  he  commit  the  act,  for  the  law  hath  provided  a 
sufficient  remedy  against  such  fears  by  applying  himself  to 
the  court  and  officers  of  justice  for  a  writ  or  precept  de  m.'curi- 
tate  pads.  Again,  if  a  man  be  desperately  assaulted,  and  in 
peril  of  death,  and  can  not  otherwise  escape  unless,  to  satisfy 
his  assailant's  fury,  he  will  kill  an  innocent  person  then  present, 
the  fear  and  actual  force  will  not  acquit  him  of  the  crime  and 
punishment  of  murder  if  he  commit  the  act,  for  he  ought 
rather  to  die  himself  than  kill  an  innocent;  but,  if  he  can  not 
otherwise  save  his  own  life,  the  law  permits  him,  in  his  own 
defense,  to  kill  the  assailant."  4  Bl.  Comm.,  §  30,  declares  the 
law  to  be :  "  Though  a  man  be  violently  assaulted,  and  has  no 
other  possible  means  of  escaping  death  but  by  killing  an  inno- 
cent person,  this  fear  and  force  shall  not  acquit  him  of  murder, 
for  he  ought  rather  to  die  himself  than  escape  by  the  murder 
of  an  innocent."  In  4  Steph.  Comm.,  bk.  6,  c.  2,  pp.  83,  84,  the 
same  rule  is  declared  to  be  the  law.  In  East,  P.  C,  the  same 
general  principles  are  declared  as  to  cases  of  treason  and  rebel- 
lion, etc.  But  on  page  294,  after  referring  to  the  case  of  two 
]iersons  being  shipwrecked  and  getting  on  the  same  plank,  the 
court  proceeds  as  follows :  "  Yet,  according  to  Lord  Ilale,  a 
man  can  not  even  excuse  the  killing  of  another  w'ho  is  innocent, 
under  a  threat,  however  urgent,  of  losing  his  own  life  unless 
he  comply.  But  if  the  commission  of  treason  may  be  extenu- 
ated by  the  fear  of  present  death  and  while  the  party  is  under 
actual  compulsion,  there  seems  no  reason  why  this  offense  may 
not  also  be  mitigated  upon  the  like  consideration  of  human 
infirmity.  But  if  the  party  might — as  Lord  Hale,  in  one  place, 
supposes — have  recourse  to  the  law  for  his  protection  against 
such  threats,  it  will  certainly  be  no  excuse  for  committing  the 
murder."    In  1  Kuss.  Crimes,  §  699,  it  is  stated  as  follows : 


III 


*|m 


1^ 


f 


■k^ 


'f  '» 


I 


522 


AMERICAN  CRIMINAL  REPORTS. 


"  The  person  committing  the  crime  must  be  a  free  agent,  and 
not  subject  to  actual  force  at  the  time  the  act  is  done.  Thus, 
if  A  by  force  take  the  arm  of  B,  in  which  is  a  weapon,  and 
therewith  kill  C,  A  is  guilty  of  murder,  but  not  B.  But  if  it 
be  only  a  moral  force  put  upon  B,  as  by  threatening  him  with 
duress  or  imprisonment,  or  even  by  an  assault  to  the  ])oril  of  his 
life,  in  order  to  compel  him  to  kill  0,  il  is  no  legal  excuse." 
In  the  case  of  lier/ina  v.  Tyler,  reported  in  8  Car.  &  P.  Clt'», 
Lord  Denman,  C.  J.,  declares  the  law  as  follows: 

"With  regard  to  the  argument  you  have  heard,  that 
these  prisoners  were  induced  to  join  Thom  and  to  continue 
with  him  from  a  fear  of  personal  violence  to  thcmsolvos, 
I  am  boun  1  tj  toll  you  that  where  parties,  for  such  a  rousoi-, 
are  induced  to  join  a  mischievous  man,  it  is  not  their  fear 
of  violence  to  themselves  which  can  excuse  their  conduct 
to  others.  *  *  *  The  law  is  that  no  man,  from  a  fear  ot 
consequences  to  himself,  has  a  right  to  make  himself  a  ])arty  to 
committing  mischief  on  mankind."  In  the  case  of  JicupubUcn 
V.  MeCui'ty,  2  Dall.  86,  when  the  defendant  was  on  trial  for 
high  treason,  the  court  uses  this  language  :  "  It  must  be  re- 
membered that  in  the  eye  of  the  law  nothing  will  excuse  the 
act  of  joining  an  enemy  but  the  fear  of  immediate  death;  not 
the  fear  of  any  inferior  personal  injury,  nor  the  api)rehension 
of  any  outrage  on  property."  The  same  rule  in  regard  to  per- 
sons charged  with  treason  as  that  stated  in  Hale,  P.  C,  is  de- 
clared in  Hawkins  (volume  1,  c.  17,  §  28,  and  note),  and  botli 
authors  hold  that  the  question  of  the  practicability  of  escajio 
is  to  be  considered,  and  that,  if  the  person  thus  acting  under 
compulsion  continued  in  the  treasonable  acts  longer  tlian  was 
necessary,  the  defense j9?*o  timore  inortis  will  not  be  available. 
This  principle  finds  further  support  in  the  case  of  U.  S.  v. 
Greiner,  tried  for  treason,  reported  in  4  Phila.  396,  in  the  fol- 
lowing language :  "  The  only  force  which  excuses  on  the 
grounds  of  compulsion  is  force  upon  the  person,  and  present 
fear  of  death,  which  force  and  fear  must  continue  during  all 
the  time  of  military  service;  and  that  it  is  incumbent  in  such 
a  case  who  makes  force  his  defense  to  show  an  actual  force, 
and  that  he  quitted  the  service  as  soon  as  he  could."  1  Whart. 
Crim.  Law,  §  94,  under  the  head  of  "  Persons  under  Compul- 
sion," says :  "  Compulsion  may  be  viewed  in  two  aspects : 
(1)  When  the  immediate  agent  is  physically  forced  to  do  the 


T"^ 


ARP  V.  STATE. 


b2-6 


injury — as  when  his  hand  is  seized  by  a  person  of  superior 
stron<,'th,  and  is  used  against  his  will  to  strilio  a  blow,  in  which 
case  no  guilt  attaches  to  the  person  so  coerced;  (2)  when  the 
force  applied  is  that  of  authority  or  fear.  Thus  wljcn  a  person, 
not  intending  wrong,  is  swept  along  by  a  party  of  iKjrsons, 
whom  he  can  not  resist,  he  is  not  responsible  if  he  is  corajielled 
to  do  wrong  by  threats  on  the  jmrt  of  the  offenders  instantly 
to  kill  him,  or  to  do  him  grievous  bodily  harm,  if  he  refuses; 
l)Ut  threats  of  future  injury,  or  the  command  of  any  one  not 
tlio  husi)and  of  the  offender,  do  not  excuse  any  offense.  Thus 
it  is  a  defense  to  an  indictment  for  treason  that  the  defendant 
was  acting  in  obedience  to  a  </^ /ac/o  government,  or  to  such 
concurring  and  overbearing  sense  of  the  community  in  which 
he  resided  as  to  imperil  his  life  in  case  of  dissent."  In  section 
lS03a  of  the  same  author  (Wharton)  it  is  said:  "No  matter 
what  may  be  the  shaix)  compulsion  takes,  if  it  affects  the  per- 
son, and  bo  yielded  to  bona  file^  it  is  a  legitimate  defense." 
We  have  examined  the  cases  cited  by  Mr.  Wharton  to  sustain 
the  text,  and  find  them  to  be  cases  of  treason  or  fear  from  the 
party  slain,  and  in  none  of  them  is  there  a  rule  different  from 
that  declared  in  the  common-law  authorities  cited  by  us. 
I'ishop  Crim.  Law,  §§  346-348,  treats  of  the  rules  of  law  ap])li- 
cable  to  acts  done  under  necessity  and  compulsion.  It  is  here 
declared  "  that  always  an  act  done  from  compulsion  or  neces- 
sity is  not  a  crime.  To  this  proposition  the  law  knows  no 
cxce))tion.  Whatever  it  is  necessary  for  a  man  to  do  to  save 
his  life  is,  in  general,  to  be  considered  as  compelled."  The 
cases  cited  to  these  propositions  show  the  facts  to  be  different 
from  those  under  consideration. 

The  case  referred  to  in  lieniger  v.  Forjossa,  1  Plow.  19,  was 
where  the  defendant  had  thrown  overboard  a  part  of  his 
cargo  of  green  wood,  during  a  severe  tempest,  to  save  his  ves- 
sel and  the  remainder  of  his  cargo.  T\\QO\\\ev{Que€iiv.Bam- 
ler,  5  Q.  B.  279)  was  for  the  failure  to  keep  up  a  highway, 
which  the  encroachments  of  the  sea  had  made  impossible; 
and  that  of  Tate  v.  State,  5  Blackf.  73,  was  also  that  of  a  sui)er- 
visor  of  a  public  highway;  and  the  others  were  cases  of  trea- 
son, to  which  reference  has  been  made.  In  section  348  the 
author  cites  the  rule  laid  down  by  Kussell,  and  also  of  Lord 
Denman,  and  in  1  East,  P.  C,  to  which  reference  has  already 
been  made.    In  section  845  the  same  author — Bish.  Crim.  Law, 


if 


U 


M 


'ii 


52:1 


AMERICAN  CRIMINAL  REPORTS. 


'    H.    Iff, 


^f  • 


(7th  Ed.) — uses  the  following  language ;  "  The  cases  in  wliich 
a  man  is  clearly  justified  in  takiug  another's  life  to  save 
his  own  are  when  the  other  has  voluntarily  placed  himself  in 
the  wrong.  And  pi'obabhj,  j>.s  we  have  seen,  it  is  never  the 
right  of  one  to  deprive  an  innocent  third  person  of  life  for 
the  preservation  of  his  own.  There  are,  it  woxdd  wem,  cir- 
cumstances in  which  one  is  bound  even  to  die  for  another." 
Italics  are  ours,  emphasized  to  call  attention  to  the  fact  that 
the  author  is  careful  to  content  himself  more  with  reference 
to  the  authorities  which  declare  these  principles  of  law  than 
an  adoption  of  them  as  his  own.  The  authorities  seem  to  be 
conclusive  that  at  common  law  no  man  could  excuse  himself, 
under  the  plea  of  necessity  or  compulsion,  for  taking  the  life 
of  an  innocent  person. 

Our  statute  has  divided  murder  into  two  degrees,  and  affixed 
the  punishment  for  each  degree,  but  in  no  respect  has  added 
to  or  taken  away  any  of  the  ingredients  of  murder  as  known 
at  common  law.  Mitchell  i).  State,  60  Ala.  26;  Fields  v.  State, 
52  Ala.  352.  That  persons  have  exposed  themselves  to  immi- 
nent peril  and  death  for  their  fellow  man,  and  that  there  are 
instances  where  innocent  persons  have  submitted  to  murder- 
ous assaulis  and  suffered  death,  rather  than  take  life,  is  well 
established;  but  sach  self-sacrifices  emiinated  from  other  motives 
than  the  fear  of  legal  punishment.  That  the  fear  of  pun- 
ishment by  imprisonment  or  death  at  some  day  by  due 
process  of  law  can  operate  with  greater  force  to  restrain 
or  deter  from  its  violation  than  the  fear  of  immediate  death 
unlawfully  inflicted,  is  hardly  reconcilable  with  our  knowl- 
edge and  exjjerience  with  that  class  of  mankind  who  are 
controlled  by  no  other  or  higher  principle  than  fear  of  the 
law.  Be  this  as  it  may,  tliere  are  other  principles  of  law 
undoubtedly  applicable  to  the  facts  of  this  case,  and  wliich 
we  think  can  not  be  ignored.  The  evidence  of  the  defendant 
himself  shows  that  he  went  to  Buckhalter's  house  about  nine 
o'clock  of  the  night  of  the  killing,  and  there  met  Buckhal- 
ter  and  Leith,  and  that  it  was  there  and  at  that  time  they  told 
him  he  must  kill  Payne.  The  evidence  is  not  clear  as  to  how 
far  it  was  from  Buckhalter's  to  Payne's  dwelling,  where  the 
crime  was  perpetrated,  but  it  was  sufficient  to  show  that  there 
was  some  considerable  distah'^o  between  the  places;  and  he  tes- 
tifies, as  they  went  to  Payne's  ihey  went  by  the  mill,  and  got 


ffi 


a 


ARP  V.  STATE. 


525 


in  wliicli 
to  save 

limsolf  in 
[never  tJio 
>f  life  for 

fieem,  cir- 
|another." 

fact  that 

I  reference 

law  than 

2eni  to  be 

himself, 
g  the  life 

nd  allixed 
las  added 
as  known 
'«  V.  State, 
to  ininii- 
thore  are 

>  uuirder- 

le,  is  well 

T  motives 

'  of  pun- 

■  by  due 
restrain 

tte  death 

f  knowl- 

vvho  are 

r  of  the 

I  of  law 

d  which 

sfendant 

out  nine 

Juckhal- 

liey  told 
to  how 

lere  the 

it  there 
he  tes- 

md  got 


the  axe  with  which  he  killed  him.    Under  every  principle  of 
law  it  was  the  duty  of  the  defendant  to  have  escaped  from 
iiucklialter  and  Leith,  after  being  informed  of  their  intention 
to  compel  him  to  take  the  life  of  Payne;  as  much  so  as  it  is 
the  duty  of  one  who  had  been  comj)elled  to  take  up  arms 
a^'ainst  his  own  government,  if  he  can  do  so  with  reasonable 
safety  to  himself,  or  of  one  assailed,  to  retreat  before  taking 
the  life  of  his  assailant.    Although  it  may  have  been  true  that 
at  the  time  he  struck  the  fatal  blow  he  had  reason  to  believe 
he  would  be  killed  by  Buckhalter  and  Leith  unless  he  killed 
Payne,  yet,  if  he  had  the  opportunity,  if  it  Avas  practicable, 
after   being   informred  at  Buckhalter's  house  of  their  inten- 
tion, and  he  could   have  made  his  escape  from  them  with 
reasonable    safety,   and    he   failed    to  do  sc»,   but  remained 
\','ith  them  until  the  time  of  the  killing,  the  immediate  neces- 
sity or  compulsion  under  which  he  acted  at  that  time  would 
be  no  excuse  to   him.      As   to  whether  escape  was  practi- 
cable to  defendant  as  we  have  stated,  was  a  question  of  fact  for 
the  jury.     The  charge  numbered    one,  and    refused  b}''  the 
court,  ignored  this  principle  of  law  and  this  phase  of  the  evi- 
dence, and  demanded  an  acquittal  of  defendant  if  at  the  time 
of  the  killing  the  compulsion  and  coercion  operated  upon  the 
defendant,  and  forced  him  to  the  commission  of  the  act,  not- 
withstanding ho  might  have  avoided  the  necessity  by  escape 
before  that  time.     We  do  not  hesitate  to  say  he  would  have 
been  justified  in  taking  the  ii'e  of  Buckhalter  and  Leith  if 
there  had  been  no  other  way  open  to  enable  him  to  avoid  the 
necessity  of  taking  the  lil>i  of  an  innocent  man.    The  charge 
requested  was  erroneous  and  misleading  in  the  respect  that  it 
ignored  the  law  and  evidence  in  these  respects.    The  second 
charge  requested  was  properly  infused.    We  suppose  the  prin- 
ciple asserted  is  exactly  the  contrary  of  that  intended.    By  the 
use  and  position  of  the  negatives  the  charge  is  made  to  assert 
that,  unless  there  was  a  present  impending  necessity  to  strike, 
there  could  be  no  murder.     There  is  no  error  in  the  record. 

It  apjiearing  that  the  day  appointed  for  the  execution  of  the 
sentence  has  ])assed,  it  is  considered  and  ordered  that  Friday, 
the  l(»th  day  of  March  next  (1803),  be  and  is  hereby  appointed 
and  specified  for  tl.'e  execution  of  the  sentence  of  the  law  pro- 
nounced by  the  trial  court,  and  the  sheriff  or  his  deputy,  or  the 
officer  acting  in  his  place,  must  execute  the  sentence.    Affirmed. 


i       i 


t 


S,!l 


I  1 


51' 


>i   ''- 


IS  '         -i. 


520  AMERICAN  CRIMINAL  REPORTS. 


Wakner  v.  State. 

(56  N.  J.  Law  686.) 
Murder  :  Intoxication  as  a  defense— Reasonable  doubt — Sentrvi^ 

1.  If  an  intoxicated  person  has  the  capacity  to  form  an  intent  to  take  life. 

and  conceives  and  executes  such  intent,  it  is  no  ground  for  reducing 
the  degree  of  his  crime  to  murder  in  the  second  degree  that  he  was  in. 
duced  to  conceive  it,  or  to  conceive  it  more  suddenly,  by  reason  of  liis 
intoxication. 

2.  When  the  statutory  intention  to  kill  exiiited,  and  the  killing  was  unpro- 

voked by  any  cause  adequate  to  reduof,  the  degree  of  the  crime  to  man- 
slaughter, the  intoxication  of  the  homicide  at  the  time  of  the  act  car 
not  aifect  the  degree  of  the  crime. 

3.  When  the  court  bad  charged  that,  if  there  was  a  reasonable  doubt  ot 

the  existence  of  any  fact  essential  to  constitute  murder  in  the  first 
degree,  such  doubt  must  be  resolved  in  favor  of  the  defendant,  it  was 
not  error  to  refuse  a  recjuest  to  charge  that  if  there  was  a  reasonable 
doubt  whether  a  particular  fact,  i.  e.,  an  intent  to  kill,  existed,  because 
of  another  particular  fact,  i.  e.,  intoxication,  the  jury  could  not  return 
a  verdict  in  the  first  degree. 

4.  The  reason  for  inquiring  of   the  prisoner  before  judgment,  in  capital 

cases,  if  he  has  anything  to  say  why  sentence  should  not  be  pronounced, 
has  disappeared  since  prisoners  have  been  permitted  to  have  counsel. 

Error  to  Supreme  Court. 

AVesley  Warner  was  convicted  of  murder,  and  brings  error. 
Affirmed. 

Charles  E.  Hendricl'son,  for  plaintiff  in  error. 
Eckard  P.  Budd^  for  tlie  State. 

Reed,  J.  On  September  18,  1892,  "Wesley  Warner  killed 
Elizabeth  Peak.  They  had  been  illicitly  consorting.  On  the 
night  of  the  18th  he  was  at  the  house  of  the  girl's  parents. 
lie  had  been  drinking.  During  the  evening  he  left  the  house, 
taking  with  him  a  butcher  knife.  He  was  next  seen  lying  in 
the  road,  by  the  two  sisters  of  the  girl,  and  some  young  men 
who  were  accompanjnng  the  three  women  home.  Warner 
rose  from  the  ground,  caught  Lizzie,  and  struck  her  with  the 
knife,  from  which  blow,  in  a  few  minutes,  she  fell  dead.  For 
this  deed  he  was  tried,  and  convicted  of  murder  in  the  first 
degree. 

The  noticeable  assignments  of  errors  are  confined  to  three 


W9 


WARNER  V.  STATE. 


62( 


]wint.s.  The  first  concerns  the  refusal  of  the  court  to  charge 
certain  requests  in  respect  to  the  effect  of  the  intoxication  of  the 
defendant  upon  the  degree  of  his  criminality.  The  first  of 
these  requests  was  the  following :  "  That  if  the  defendant 
was  at  the  time  in  such  a  state  of  intoxication  that  his  mind 
v.as  incapable  of  premeditating  the  fatal  blow,  with  tlie  intent 
to  take  life,  and  his  reason  was  deprived  of  the  power  to  think 
and  weigh  the  nature  of  the  act,  and  the  consequences  of  the 
act,  then  the  offense  committed  can  not  be  more  than  murder 
in  the  second  degree."  The  court  charged,  generally,  that 
"If  the  defendant  was  mentally  capable  of  conceiving  a  de- 
sign to  take  the  life  of  the  woman,  and  he  did  conceive  such  a 
design,  and  if  you  are  satisfied  that,  in  pursuance  of  a  design 
thus  conceived,  he  purposely  inflicted  the  fatal  blow,  then  he 
was  guilty  of  murder  in  the  first  degree;  whereas,  if  you  fin.' 
that  he  was  incai)able,  from  the  condition  of  his  mind,  of  con- 
ceiving such  a  purpose,  or  that  in  point  of  fact  he  had  not  fully 
conceived  such  a  purpose,  and  acted,  in  striking  the  fatal  blow, 
not  from  design,  but  from  sudden  and  motiveless,  or  from 
uncontrollable,  because  drunken,  violence,  then  he  is  not 
guilty  of  murder  in  the  first  degree,  but  guilty  of  murder  in 
tlie  second  degree."  In  respect  to  the  request  already  set  out, 
the  court  remarked :  "  I  decline  to  charge  that  he  must  have 
weighed  the  consequences  of  the  act.  If  he  intended  to  kill, 
whether  he  took  into  consideration  all  of  the  possible  conse- 
quences of  the  act,  I  do  not  think  is  material."  Assuming 
that  the  theory  upon  which  the  request  to  charge,  and  the 
charge,  were  formed,  is  correct,  namely,  that  a  degree  of  drunk- 
enness which  obliterates  from  the  mind  of  a  homicide  all  in- 
tention to  take  life,  reduces  the  degree  of  the  crime,  I  yet  fail 
to  see  any  error  in  the  general  language  of  this  charge,  or  in 
the  resjionse  to  the  request.  The  point  was  clearly  presented 
to  the  jury,  that  the  question  was,  whether  there  existed  a  de- 
sign to  take  life.  This  design  involved  the  consequences  of 
the  act  committed,  in  respect  of  the  result  of  the  blow,  namely, 
whether  the  use  of  the  knife  was  likely  to  kill.  The  request 
involved  an  irrelevant  consideration.  It  included  also  a  sub- 
mission of  the  question  of  the  ability  of  the  defentlant  to 
apprehend  what  punishment  would  follow  the  killing. 

There  is  an  assignment  also,  to  the  refusal  of  the  judge  to 
charge  the  language  of  a  request  framed  as  follows :    "  That 


'!lifpt."-r: 


!  ■ 


jJ! 

■  ^ 

i  : 

\  K 

^K    * 

n 

R 

't 


528 


AMERICAN  CRIMINAL   REPORTS. 


if,  upon  the  whole  evidence,  the  jury  have  a  reasonable  doubt 
whether,  at  the  time  of  the  killing,  defendant  had,  as  the  re- 
sult of  intoxication,  or  its  after  effects,  sufficient  mental  capac- 
ity to  deliberately  think  upon,  and  rationally  determine  to 
kill  the  deceased,  they  can  not  find  him  guilty  of  murder  in 
the  first  degree."  The  response  of  the  court  was :  "  I  have 
charged  that  the  prisonei  must  have  been  able  to  form,  and 
must  have  formed,  a  desigii  to  take  life,  which  was  not  the  re- 
sult of  mere  sudden  passioi  or  of  intoxication,  and  I  refuse  to 
charge  otherwise."  Now,  the  court  had  already  charged  tliat 
"if  there  be,  in  regard  to  any  fact,  any  condition  of  doubt  in 
the  mind  of  a  juror,  of  that  character  which  has  been  described 
as  reasonable  doubt,  *  *  *  that  doubt  should  be  re- 
solved in  favor  of  the  defendant."  Then  follows  a  full  and 
accurate  statement  of  the  legal  idea  of  tlie  term  "  reasonable 
doubt."  The  court  is  not  obliged  to  reiterate  the  same  idea  in 
every  possible  lingual  shape  in  which  it  may  be  framed  in  dif- 
ferent requests.  Design  to  kill  was  a  fact.  A  reasonable 
doubt  of  the  existence  of  that  fact  might  spring  out  of  the 
drunkenness  of  defendant,  or  out  of  any  other  circumstance, 
or  combination  of  drunkenness  with  other  circumstances.  A 
charge  that  the  defendant  was  entitled  to  the  benefit  of  a  rea- 
sonable  doubt  as  to  any  fact  the  state  was  bound  to  pi'ove,  in- 
volved, necessarily,  the  proposition  that,  if  there  was  a  reason- 
able doubt  whether  drunkenness  deprived  the  defendant  of 
this  intent  to  kill,  he  could  not  be  convicted  of  murder  in  the 
first  degree. 

The  fourth  request  was  as  follows :  "  That  though  the  jury 
should  find  that,  at  the  time  the  blow  was  struck,  the  defend- 
ant was  not  so  drunk  as  to  be  incapable  of  forming  the  pre- 
meditated and  deliberate  intent  to  kill,  yet  if  the  jury,  in  con- 
sidering the  effects  of  his  intoxication,  with  all  the  otlier  facts, 
should  find  that  the  purpose  to  kill  the  deceased,  if  any,  was 
formed  in  passion  or  jealous  rage,  produced  upon  his  mind,  ex- 
cited by  liquor,  upon  suddenly  finding  the  deceased  in  com- 
pany with  another  man  on  the  road,  then  it  would  reduce  the 
offense  to  murder  in  the  second  degree."  The  fifth  request 
was  to  the  same  purport.  These  requests  were  refused,  except 
as  before  charged.  The  substance  of  these  requests  was  that 
the  jury  should  be  instructed  that  a  killing  accomplished  with 
the  design  to  take  life,  uninduced  bv  any  provocation  which 


WARNER  V.  STATE. 


529 


ble  doubt 
as  tlie  re- 
ital  capac- 
termine  to 
urcler  in 
"  I  have 
form,  and 
lot  tlie  re- 
refuse  to 
rged  that 
doubt  in 
described 
lid  be  ro- 
i  full  and 
'oasonablo 
nie  idea  in 
led  in  dif- 
'easonable 
ut  of  the 
nni  stance, 
inces.    A 
t  of  a  rea- 
provo,  in- 
a  reason- 
mdant  of 
ler  in  the 

1  the  jury 
e  defend- 

the  pre- 
y,  in  con- 
lier  facts, 
any,  was 
nind,  ex- 

in  coni- 
duce  the 

request 
I,  except 
vas  that 
ed  with 
n  which 


would  reduce  it  to  the  degree  of  manslaughter,  could  be  re- 
duced to  murder  in  the  second  degree  by  the  intervention  of 
tlie  partial  intoxication  of  the  offender.  The  general  proposi- 
tion is  that  drunkenness  is  no  excuse  for  crime. 

The  reasoning  upon  which,  in  those  states  in  which  murder 
is  distinguished  by  tiegrees,  drunkenness  is  permitted  to  modify 
tlie  degree  of  the  crime,  rests  upon  one  requirement  essential 
to  onstitute  murder  in  the  first  degree.  This  requirement  is 
tlie  existence  of  actual,  specific  malice — of  an  actual  intent  to 
take  life.  Without  this,  there  is  no  crime  in  that  degree. 
Any  condition  of  fact,  whether  drunkenness  or  other  circum- 
stance, which  shows  the  non-existonce  of  this  kind  of  actual 
malice,  is  relevant,  not  as  an  excuse  for  crime,  but  as  showing 
that  no  statutory  crime  at  all,  of  the  degree  named,  was  com- 
mitted. This  is  the  theory  upon  which  all  the  cases  go  which 
recognize  drunkenness  as  an  element  in  the  ascertainment  of 
the  degree  of  murder.  State  v.  Johnmn,  40  Conn.  136;  41 
f'onn.  5S5;  liaherts  v.  People^  19  Mich.  401;  Pignian  v.  State, 
14  Ohio  555;  Slmnnahnn  v.  Com.,  8  Bush.  403;  Jones  v.  Com., 
7.)  Pa.  St.  403;  Com.  v.  Dorsey,  103  Mass.  412.  It  is  to  be  re- 
marked that  these  cases  carry  the  rule  no  further  than  this. 
In  respect  to  murder  in  the  second  degree,  it  is  said  in  State  v. 
Johnson,  41  Conn.  585,  that  a  conviction  is  supported  by  im- 
j)lied  malice,  and  that,  therefore,  if  a  drunken  man  takes  the 
life  of  another,  unaccom])anied  with  circvmstances  of  provo- 
cation or  justification,  a  jury  will  be  warranted  in  finding  the 
existence  of  malice,  though  no  express  malice  is  proved.  In- 
toxication, which  i'i  itself  a  crime  against  society,  combines 
Avith  the  act  of  killing,  and  the  evil  intent  to  take  life,  which 
necessarily  accompanies  it,  and  all  together  afford  sufficient 
ground  for  implying  malice.  This  is  the  rule  which  has  always 
obtained  in  respect  to  crimes  requiring  no  specific  intent,  com- 
mitted bv  drunken  parties.  Although  the  drunken  man  may 
do  a  criminal  act  unintentionally,  yet  the  intent  to  g«'t  drunk 
coalesces  with  the  act,  and  combines  act  and  intent.  1  Bish. 
Cr.  Law,  §  400.  The  exceptional  immunity  extended  to  the 
drunkard  is  limited  to  those  instances  where  thecrinie  involves 
a  specific,  actual  intent.  Wlu;n  the  degree  of  intoxication  is 
such  as  to  render  the  person  incapable  of  entertaining  such 
intent,  it  is  an  effective  defense.  If  it  falls  short  of  this,  it  is 
worthless.  Now,  it  is  indisputable  that  the  charge  of  the 
34 


'•'  s 


i      1 


%':■ 


T 


:|i^ 


680 


AMERICAN  CRIMINAL  REPORTS. 


court  as  to  the  condition  of  mind  necessary  to  fix  upon  the 
defendant  the  crime  of  murder  in  the  fiist  degree  was  entiioly 
correct.  It  is  clear  that  the  jury  Avas  instructed  that  the 
absence  of  that  mental  condition  was  a  complete  defense  to 
the  charge  of  murder  in  the  first  degree.  The  jury  found, 
therefore,  that  the  defendant  possessed  the  design  or  intent 
specifically  required  by  the  statute,  as  construed  by  our  courts. 
The  crime  therefore  existed,  although  committed  by  a  man  |)ar- 
tially  intoxicated.  The  request  involved  the  proposition  tliat, 
although  all  the  elements  of  the  crime  existed,  yet  if  one  of  the 
elements,  namely,  intent,  was  induced  by  voluntary  drunlvon- 
ness,  this  fact  would  modify  the  crime. 

The  claim  was  that  if  this  intent  sprung  into  existence  from 
the  cause  named,  by  reason  of  drink,  it  excused  the  crime  in 
that  degree.  The  ])roposition  is  excluded  by  the  rule  already 
mentioned,  that  when  the  crime  is  complete  the  influence  of 
intoxication  is  an  irrelevant  matter.  This  proposition  also 
includes  the  following  results :  A  man  is  assailed  with  some 
gross  verbal  indignity,  and,  in  passion,  kills  his  assailant.  Xo 
matter  how  sensitive  his  t(Mnperamcnt,  how  nervous  his  organ- 
ization, he  is  guilty  of  murder,  and,  if  he  had  the  design  to 
kill,  of  murder  in  the  first  degree.  So  a  person  wlio,  induced 
by  a  jealous  fury,  forms  and  executes  a  design  to  kill  the  object 
of  his  jealousy,  is  guilt}'  of  murder  in  the  first  degree.  The 
law  takes  no  account  of  physical  or  mental  organization,  asi(h' 
from  irresponsible  insanity,  in  palliation  of  his  guilt.  He  may 
be  sick,  nervous,  or  endowed  with  an  abnormally  jealous  dis- 
position; he  may  be  exceptionally  sensitive  to  impressions, 
and  unrestrainably  impulsive.  Tliis  counts  for  nothing,  if  the 
design  to  kill  exists.  But.  the  proposition  is  that  voluntary 
drunkenness  is  to  be  accorded  an  efticacy,  as  a  shield  from 
crime,  wiiich  is  denied  to  the  misfortune  of  congenital  or  in 
herited  weaknesses.     Tlie  recjuest  was  correctly  refused. 

The  second  ground  upon  which  error  is  assigned  is  in  respect 
to  alleged  misconduct  of  the  jury.  It  appears  from  the  printed 
book  that  tluring  the  trial  the  jury,  in  charge  of  an  otticer, 
walked  out  to  the  scene  of  the  murder.  Upon  this  fact  com- 
ing to  the  attention  of  the  court  the  matter  was  opened  to 
defendant's  counsel.  The  ofticers  were  examined  and  the 
defendant,  personally  and  by  his  counsel,  waived  any  objecti<jn 
to  the  irregularity  committed  by  the  jury.     Upon  motion  for 


w^. 


WARNER  V.  STATE. 


531 


a  now  trial,  the  refusal  of  the  court  to  grant  a  now  trial  upon 
tills  f^round  was  e.:cepted  to.     Upon  the  argument,  the  limit- 
ation upon  the  power  of  a  defendant  in  a  criminal  case  to  waive 
any  error  in  procedure,  was  elaborately  discussed.     It  was  also 
insisted  that  the  conditions  surrounding  the  ]>risoner  were  such 
tliat  he  was  constrained  to  waive  the  irregularity.     I  find 
nothing  in  the  case  that  displays  any  illegal  restraint,  but  if 
there  had  been  such,  and  the  waiver  should  be  swept  away,  it 
would  not  change  the  complexion  of  affairs.     For  while  it  was 
admittedly  irregular  for  the  jury  to  visit  the  place  where  the 
deed  occurred,  unless  under  judicial  orders,  I  lind  nothing  in 
the  fact  of  the  visit  which  could  have  ])rejudiced  the  defend- 
ant.   The  jury  walked  up  the  road,  at  the  request  of  the  fore- 
man, till  they  came  to  a  place  where  there  was  a  small  bush 
which  had  been  mentioned  as  the  scene  of  the  homicide.     Not 
a  word  was  addressed  to  the  jury  by  the  officers.    No  third 
party  was  ])resent.     In  about  three  minutes  they  moved  on 
their  return.     There  was  no  dispute  in  the  case  in  res]>ect  to 
the  topography  of  the  ])lace  of  the  homicide,  nor  in  respect  to 
the  presence  of  the  bush.     There  was  no  question  but  that  the 
defendant  was  sitting  or  lying  along  the  fence,  behind  or  near 
the  bush,  when  Lizzie  and  the  party  with  her  came  up  the 
road,  and  that  he  rose  up  upon  their  ap])roach.    There  is  no 
contention  that  the  place  seen  by  the  jury  was  not  exactly  as 
described  in  the  testimony.     Upon  the  (]uestion  tried  in  the 
cause,  and  submitted  to  the  jury,  namely,  whether  the  defend- 
ant had  the  capacity  to  form  a  design,  and  did  form  a  design, 
to  kill,  nothing  that  the  jury  saw  could  in  any  conceivable  way 
have  added  to  or  diminished  the  effect  of  the  testimony.     This 
case  is  rndically  different  from  tiiatof  D'licnn  t\  S/ircvc,  22  N. 
J.  Law  17<>.     That  was  an  action  for  overflowing  lands.    Three 
jurors,  at  the  solicitation  of  a  friend  of  the  pl.iintilf,  inspected 
a  spring,  the  situation  of  which  was  a  material  point  in  the 
cause.     The   jur^M's  were   accompanied   by  a  brother  of  the 
plaintiff,  and  l)y  a  witness  and  friend  of  the  plainfitf.  who  con- 
versed with  the  jurors  about  the  matter.     It  was  also  probal^le 
that  the  jurors  riHUMved  pay  for  their  visit.     The  verdict  was 
]»roporly  set  aside.     In  the  present  case  there  was  no  solicita- 
tion by  any  person  connecttsd  with  the  case,  and  no  convei'sa- 
tion  with  the  jury.     The  act  of  the  jury  was  upon  the  casual 
re(pie8t  of  the  foreman,  and  its  effect,  as  already  remarked, 


^     '  m 


582 


AMERICAN  CRIMINAL  REPORTS. 


could  not  have  been  injurious  to  the  prisoner.  The  rule  wliicli 
controls  the  court  in  dealing  with  this  class  of  irreguluritii:? 
was  declared  by  the  supreme  court  in  the  case  of  Stute  v.  <'.■■■- 
ctiel,  31  N.  J.  Law  24{>.  In  that  case  a  juror,  during  tiie  trial 
had  visited  his  home  with  an  officer.  Tliis  being  a  capital 
case,  the  act  of  the  juror  was  irregular.  It  appears,  also,  that 
one  of  the  jurors  went  with  an  oHicer  to  an  oyster  saloon,  aiul 
heard  a  casual  remark  pass  between  third  parties  about  tlio 
trial,  and  thereui)on  immediately  left  the  place. 

The  court  refused  to  set  aside  the  verdict,  remarking  that, 
in  its  anxiety  to  ])rotect  the  prisoner,  it  must  not  abandon 
the  sure  footing  of  common  sense.  The  rule  announced  was 
that  the  misconduct  must  have  been  such  as  to  warrant  tin? 
belief  that  the  fairness  and  ])ropriety  of  the  trial  had  been  im- 
])aired.  This  rule  was  restated  in  the  case  of  Tifiii^  v.  State,  40  N. 
J.  Law  30,  in  which  case  the  jury  procured  a  magnifying  glass 
to  compare  certain  wooden  fibers  adhering  to  the  clothes  of  the 
murdered  girl  with  those  of  a  wooden  platform,  ui)on  which,  the 
state  contended,  the  girl  had  boon  thrown  down  when  she  was 
violated.  Si)eaking  upon  this  subject,  Mr.  JJishop  says:  "It 
does  not  follow  from  the  mere  fact  of  the  misbehavior  of  one 
or  more  of  the  jury,  whether  with  or  without  the  consent  of 
the  officer  in  charge,  that  their  verdict  will  therefore  be  set 
aside  on  the  application  of  the  prisoner.  There  is  no  genoial 
rule  which  can  be  given  on  this  suljject,  other  than  that  if  the 
misbehavior  is  of  such  a  nature  as  may  have  'oeen,  in  its 
effects,  prejudicial  to  the  prisoner,  the  verdict  will  be  set  aside; 
if  otherwise,  it  will  not  be."  1  Bish.  Cr.  Proc,  g  '.»{){).  So. 
aside  from  the  waiver  of  the  irregularity,  it  was  not  such 
as  to  vitiate  the  verdict.  AVhile  I  have  considered  thisassi<>n- 
ment  of  error  because  it  was  insisted  ujmn  with  some  ])ersist- 
ence,  and  the  assignment  was  not  objcicted  to,  I  do  not 
perceive  how  the  matter  became  pro|)(irly  the  subject  of  an 
assignment  in  error.  No  exception  was  taken  to  any  action  of 
the  court  in  respect  thereto  during  the  trial,  and  no  exce])tion 
can  properly  be  sealed  to  the  action  of  the  court  in  refusing  a 
new  trial. 

The  next  ground  upon  which  error  is  assigned  is  that  the 
record  fails  to  show  that  the  court  asked  the  prisoner,  befoio 
])ronouncing  judgment,  if  he  had  anything  to  say  why  judg- 
ment should  not  be  pronounced.     The  use   of   this   form  of 


['[e^'uliiritiw 

k'  the  triiil. 
p^'acii|)ifi,| 
K  also,  that 
[saloon,  and 
about  tho 

rkin^  tliat, 

>t    ahjlIKh)!! 

Jounced  was 
*'arnint  tiie 
i<l  been  im- 
State,  40  X. 
fving-  ^r|..,ss 
>t]ies  of  tjjc 
'^vhich,th(' 
en  she  was 
says:    "Jt 
viorof  one 
consent  of 
'oj'e  be  set 
no  general 
tliat  if  the 
"^^■,  in  its 
?  set  asi(h'; 
!>!i{).     JSo. 
not  such 
his  assign - 
f>e  i)ersist- 
J   <Io   not 
L^ct  of  an 
action  of 
3Xcei)tion 
ofusing  ji 

that  the 
r,  before 
ijv  iudir- 
i'orin  of 


WARNER  V.  STATE. 


words  appears  to  have  attended  tho  imposition  of  sentence  in 
capital  cases  in  England,  and  I  tliink  the  formula  has  always 
been  em|)loyed  in  this  state,  in  like  cases.  The  question  is 
whether  its  absence  from  the  record  displays  so  injurious  an 
error  as  should  lead  to  a  reversal  of  the  judgment.  In  tho 
first  i)laco  it  is  to  be  remarked  that  while  the  books  of  crim- 
inal practice  enjoin  the  use  of  these  words  in  all  capital  cases, 
yet  1  have  no  knowledge  of  any  British  case  in  which  a  judg- 
ment hfis  been  reversed  on  tho  solo  ground  that  these  words 
(lid  not  a])p(.'ar  in  the  record,  aside  from  three  cases  of  out- 
lawry for  treason.  BatHcomV m  Caxe,  3  J^fod.  205;  Re.ro.  Genrijy 
2  Salk.  030;  A\',«  v.  Speh;,  3  Salk.  358.  The  reasons  advanced 
for  a  revei'sal  were  that  in  response  to  the  query  the  ])risoner 
might  have  ])leaded  a  pardon,  or  have  moved  in  arrest  of  judg- 
ment. Those  reasons,  at  tho  time  when  the  rule  was  thus 
recognized,  were  substantial.  Tho  ])risoner,  in  this  class  of 
cases,  was  not  permitted  to  have  the  assistance  of  counsel. 
That  beautiful  feature  of  liritish  criminal  juris])rudence  which 
permitted  a  man  indicted  for  tho  lightest  misdemeanor  to  be 
defended  by  trained  lawyers,  and  yet  compelled  the  man  in- 
dicted for  forgery  or  murder  to  rely  upon  the  fiction  that  tho 
court  was  his  counsel,  continued  until  ISSO.  So  that  tho  objec- 
tion v;hich  would  operate  to  arrest  the  entering  of  judgment 
had  to  be  stated  by  the  defendant  himself.  The  privilege  ex- 
tended to  the  defendant,  under  this  condition  of  affairs,  was 
a  substantial  one,  and,  in  reason,  extended  to  all  cases  of  felony. 
Under  the  condition  of  affairs  existing  in  this  state,  however, 
the  reason  for  the  form  has  entirely  disappeared.  The  defend- 
ant is  re])resented  by  counsel  who  needs  no  invitation  to  inter- 
pose any  legal  objection  at  any  stage  of  the  proceedings. 
Counsel  know  the  occasion  when  it  is  proper  to  assert  the 
rights  of  the  defendant,  and  so  the  query  of  tho  court,  whether 
regarded  as  an  instruction  to  the  defendant  as  to  his  rights,  or 
as  an  invitation  to  assert  them,  is  an  unmeaning  ceremony. 
In  the  present  case  it  would  have  been  ridiculously  idle,  for  it 
ai)pears  that,  after  the  rendition  of  tho  verdict,  a  rule  to  show 
cause  why  a  now  trial  should  not  be  granted  was  moved  for 
upon  grounds  submitted  to  the  court  by  defendant's  counsel. 
This  motion  was  overruled.  So,  after  this  prosentfition  of  the 
grf)unds  for  a  new  trial,  judgment  was  pronounced.  Whore  a 
defendant  is  represented  by  counsel,  there  exists  no   reason 


i^  rlmuH^^^H^ 


534 


AMERICAN  CRIMINAL  REPORTS. 


\i  , 


whatever  for  the  inquiry,  and  the  law  requiring  it  shouhl  ooaiio 
with  the  reason.  The  best  considered  cases  in  this  couiitiv 
adopt  the  view  that  where  the  defendant  is  represented  by 
counsel,  and  especially  where  he  has  moved  for  a  new  trial, 
the  interrogatory  is  unnecessary.  21  Am.  &  Eng.  Enc.  Law, 
p.  1070. 

The  remaining  assignments  do  not  call  for  sjjccial  mention. 
We  find  no  error  in  the  record,  and  the  judgment  of  the  Oyer 
and  Terminer  is  affirmed. 

Note. — Intoxication  as  an  excuse  for  crime.— While  it  is  true  that  intox- 
ication is  not  a  justification  or  excuse  for  crime,  it  is  also  true  tliat  evidcncu 
of  intoxication  may  lie  admitted  to  determine  whether  or  not  a  crime  lias 
been  committed,  or,  where  it  consists  of  several  decrees,  depending  on  the 
intent,  the  grade  of  tlie  olTonse.  Cline  v.  State,  4'i  Ohio  St.  3il4,  335,  states 
the  law  aa  follows:  "  Where  a  jwi-son  having  the  desire  to  do  to  another  an 
unlawful  injury,  drinks  intoxicating  liquors  to  nerve  Jiimself  to  the  com- 
mission of  the  crime,  intoxication  is  held,  and  proiKM-lj',  to  aggravate  the 
offense;  but  at  present  the  rule  that  intoxication  aggravates  crime  is  cun- 
fined  to  cases  of  that  class.  The  rule  is  well  settled  that  intoxication  is  not 
a  justification  or  an  excuse  for  <!rime.  To  hold  otlierwise  would  bo  danger- 
ous to,  and  subversive  of,  public  welfare.  But  in  many  casi>8  evidence  of 
intoxication  is  admissible  witli  a  view  to  the  question  wliether  a  crime  has 
been  committed,  or,  where  a  crime  consisting  of  degrees  has  been  connn  it- 
ted,  such  evidence  may  be  important  in  determining  a  degi-ee.  Thus  an 
intoxicated  person  may  have  a  counterfeit  bank  bill  in  his  jKwsi'saion  for  a 
lawful  purpose,  and,  intending  to  pay  a  genuine  bill  to  anotlier  person,  may 
by  reason  of  such  intoxication,  hand  him  the  counterfeit  bill.  As  intent, 
in  such  case,  is  of  the  essence  of  tl>e  offense,  it  is  iwssible  that  in  proving 
intoxication  you  go  far  to  prove  that  no  crime  was  conmiitted.  Pigman  v. 
State,  14  Ohio,  555.  So  wliere  the  offense  charged  embraces  deliberation, 
premeditation,  some  specific  intent  or  the  like,  evidence  of  intoxication 
may  be  imiwrtant,  and  it  has  fre(iuently  been  admitted.  Davis  v.  State, 
35  Oliio  St.  869;  Lytic  v.  State,  31  Ohio  St.  106.  The  leading  case,  Pigman 
V.  State,  has  been  repeatedly  cited  with  approval  {Pei)2>le  v,  Huhinnon,  2 
Parker,  Crim.  R.  235;  People  v.  Harris.  29  Cal,  678;  Roberts  v.  People,  19 
Mich.  401;  State  v.  Welch,  21  Minn.  22;  Hopt  v.  People,  104  U.  S.  031;  State 
V.  Johnson,  40  Conn.  136);  and  no  doubt  the  law  upon  the  subject  is  cor- 
rectly stated  in  that  case,  and  the  rule  as  there  expressed  is  humane  and 
just;  but  there  is  always  danger  that  undue  weight  will  be  attached  to  the 
fact  of  drunkenness  where  it  is  shown  in  a  criminal  case,  and  courts 
and  juries  should  see  that  it  is  only  used  for  the  puqxjse  above 
stated,  and  not  a«  a  cloak  or  justification  for  crime.  See  also,  U.  S.  v. 
Drew,  5  Mason.  28;  1  Lead.  Crim.  Cas.  (2d  Ed.)  131,  note;  Reg.  v.  Davis, 
14  Cox  Crim.  Cas.  563;  28  Moak  Eng.  R.  657,  note;  Lawson,  Inaan.,  533-768, 
where  all  the  cases  are  collected  relating  to  the  admissibility  and  effect  in 
criminal  cases  of  proof  of  intoxication." 

Drunkenness  is  not  favored  aa  a  defense,  and  in  Johnson  v.  Phifer,  6 
Neb.  402,  the  court  held  that  it  could  not  relieve  a  party  from  a  contract 


i 


WARNER  V.  STATE. 


535 


pliis  coiiiitrv 


posentcil 


•>y 


|a  new  tvin], 
Enc.  Law^ 

i'  mention, 
^f  thoOvor 


le  tliat  iiitov- 
[thnt  evidiMicf 

H  crime  luw 
■ndin^r  „„  j,,^. 

(4,  ,'{35,  stati's 
to  another  an 
to  the  ami. 
ffKruvat«3  tlie 
crime  is  con. 
ioation  is  not 
l»l  Iw  danger- 
evidenco  of 
a  crime  Jias 
t'cn  comnijt- 
w'.     Tlius  an 
wssion  for  a 
I'crson,  may 
As  intent, 
it  in  pruvin;; 
Pig  man  r. 
Miberation, 
intoxication 
"is  V.  State, 
we,  Piginan 
Hohinnou,  2 
'.  People,  19 

jeot  is  cor- 
iniane  and 
5licd  to  tlie 
md  courts 
ose  above 
o,  U.  S.  V. 
.  V.  Dam's, 
.,533-768, 
effect  in 

Phifer,  6 
I  contract 


on  tlio  pronnd  that  he  was  drunk  wlicn  it  was  entered  into,  unless  his  con- 
dition reached  that  decree  winch  may  l)e  called  '•  excessive  drunkenness," 
wlicre  a  party  is  utterly  deprived  of  reason  and  understandinR.  This  is 
fjencrally  accepted  as  the  true  rule.  As  nmch  as  it  may  be  desired  to  dis- 
coiiraKo  drunkenness,  and  deplorable  as  the  habit  of  drinking,  with  its 
train  of  wrecks  and  ruin,  may  be,  the  frailty  of  human  bein^H  must  b« 
ri'connizcd  and  the  law  adapted  to  the  actual  conditiim  of  the  party.  In 
IHifmaii  V.  State,  Hupra,  it  is  said:  "The  older  writers  repird  drunken- 
ness as  an  a^Ki'avation  of  the  offense,  and  exchided  it  for  any  puriMjse.  It 
is  a  liiKh  crime  against  one's  self,  an«l  offensive  to  society  and  good  morals. 
Yet  every  man  knows  that  acts  may  be  committed  in  a  fit  of  intoxication 
which  would  be  abhorred  in  sober  moments.  And  it  seems  strange  that 
any  one  should  ever  have  imagined  that  a  person  who  committed  an  act 
from  the  effects  of  drink,  which  he  would  not  have  done  if  sober,  is  worse 
than  the  man  who  commits  it  from  sober  and  deliberate  intent.  The  law 
ri'giirds  an  act  done  in  sudden  heat,  in  a  moment  of  frenzy,  when  passion 
has  dethroned  reastm,  as  less  critninal  than  the  same  act  when  performed 
in  the  ccmjI  and  undisturbed  possession  of  all  the  faculties.  There  is  nothing 
tlie  law  so  abhors  as  the  cool,  deliberate  and  settled  purjKise  to  do  mischief. 
That  is  a  quality  of  a  demon;  whilst  that  which  is  done  cm  great  excite- 
ment, as  when  the  mind  is  broken  up  by  poison  or  intoxication,  although 
to  be  jamished,  may  to  some  extent  be  softened  and  set  down  to  the  infirm- 
ities of  human  nature.  Hen<!e — not  regarding  it  as  an  aggravation — 
drunkenness,  as  anything  else  sitowing  the  state  of  mind  or  degree  of 
knowledge,  should  go  to  tlie  jury.  Upon  this  principle,  in  modern  cases, 
it  hiis  been  i)ermitted  to  be  shown  that  the  accused  was  drunk  when  he 
perpetrated  the  crime  of  killing,  to  rebut  the  idea  that  it  was  done  in  a 
cool  and  deliberate  state  of  the  mind,  necessary  to  constitute  murder  in  the 
first  degree. 

The  insanity  known  as  "  delirium  tremens,"  or  "  mania  a  potn,"  called 
by  Mr.  Wharton  "settled  insanity,"  to  distinguish  it  from  "  temporary  in- 
sanity," has  always  been  lield  to  be  an  al)solute  defense  to  crime.  No  man 
intends  or  desires  to  be  under  the  influence  of  delirium  tremens.  It  is 
rather  shunned  than  coveted,  and  is  always  an  involuntary  result,  and  gen- 
erally caused  by  an  alistinence  from  li(|Uor,  and  no  man  voluntarily  assumes 
it  for  the  purpose  of  covering  guilt.  1  Whart.  Crim.  Law,  §  48.  In  U.  S, 
V.  Drew,  5  Mason,  28,  where  Drew,  the  captain  of  a  ship,  after  weeks  of  intox- 
ication, suddenly  ceased  to  drink,  and  became  affected  with  delirium  tre- 
mens, and  while  in  this  condition  killed  his  mate.  Story,  J.,  declared  that 
criminal  responsibility  would  not  attach  where  the  delirium  is  the  remote 
consecjuence  of  voluntary  intoxication  caused  by  the  antecedent  exhaustion 
of  the  party  arising  from  gross  and  habitual  drunkenness.  ' '  Had  Drew  com- 
mitted the  crime  while  he  was  in  a  fit  of  intoxication,  he  would  be  liable  to 
conviction  for  murder.  As  he  was  not  intoxicated,  but  insane  from  an 
abstinenci!  from  liiiuor,  he  is  not  guilty.  The  law  looks  to  the  immediate, 
and  not  to  the  remote,  cause."  In  U.  S,  v.  Clarke,  3  Cranch,  C.  C.  158,  the 
court  tt)ld  the  jury  that  if  they  should  be  satisfied  that  the  jirisoner,  at  the 
time  of  committing  the  act  charged  in  the  indictment,  wa'*  in  such  a  state 
of  insanity,  not  produced  by  the  immediate  effects  of  intoxicating  drinks, 
as  not  to  be  conscious  of  the  moral  turpitude  of  the  act,  they  should  find 
him  not  guilty. 


i 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


1.1 


ltt|21 

mm 

m 

HI 


140 


12.0 


11.25  11.4 


6" 


Sdmoes 
Carporatian 


23  VnST  MAM  STMIT 

wnsTn,N.v.  usM 

(71*)t72-4S03 


ii 


Mil 


536 


AMERICAN  CRIMINAL  REPORTS. 


But  temporary  insanity  produced  by  the  recent  use  of  intoxicating  liqiuirj 
does  not  destroy  responsibility  when  defendant,  sane  and  responsible,  made 
himself  voluntarily  intoxicated.  Clore's  Case,  36  Tex.  App.  624.  Jlr. 
Wharton  well  says,  there  can  be  no  doubt  on  this  point,  either  on  ]>iiti- 
ciple,  policy  or  authority.  Whart.  Trim.  Liw,  §49.  A  man  who  volnn- 
tarily  places  himself  in  such  a  position  as  to  become  incapable  of  (list  in- 
guishing  between  right  and  wi-ong  is  simply  responsible  for  any  injury 
resulting  therefrom,  as  any  one  would  be  who  does  an  act  likely  to  pro(lu((> 
death,  though  at  the  time  having  no  specific  intent  to  take  the  life  of  any 
one.  Temporary  insanity  differs  from  settled  insanity  in  the  causes  ])ro- 
ducing  it  and  its  consequences.  Practically,  they  may  be  the  same;  tliat 
is,  both  may  come  under  the  definition  of  not  being  able  to  distinguish  ri};lit 
from  wrong,  and  being  unconscious  of  the  nature  of  the  act  done,  yet  the 
consequences  are  different.  In  the  first,  resixtnsibility  never  ceases;  in  tlie 
other,  there  is  none. 

Drunkenness  is  a  proper  circumstance,  and  should  be  weighed  by  the  jury 
in  determining  whether  there  existed  the  specific  intent  to  commit  the 
crime  charged.     The  State  v.  Bell,  29  Iowa  316. 

Under  a  statute  establishing  degrees  of  the  crime  of  murder,  and  provid- 
ing that  wilful,  deliberate  and  premeditated  killing  shall  be  murder  m  tlie 
first  degree,  evidence  that  the  accused  was  intoxicated  at  the  time  of  the 
killing  is  competent  for  the  consideration  of  the  jury  upon  the  question 
whether  he  was  in  such  a  condition  of  mind  as  to  be  cajmble  of  deliberate 
premeditation.     State  v.  O'Neil,  51  Kan.  651;  24  L.  R.  A.  555, 


State  v.  Bukpke. 


(65  Vt.  1.) 
Province  of  Court  and  Jury:   L-irceny— Evidence— Motive  of  witneits. 

1.  One  accused  of  stealing  may  show  that  a  witness  who  testifies  to  having 

bought  the  alleged  stolen  i)roperty  from  defendant  was  himself  accused 
of  the  saiiiC  offense,  as  furnishing  a  motive  to  testify  falsely. 

2.  The  asking  of  an  improper  question  in  a  criminal  case  is  not  reversible 

error  if  no  answer  is  obtained. 
8.  The  doctrine  that  jurors  are  paramount  judges  of  the  law,  as  well  as  of 
the  facts,  in  criminal  cjises,  is  contrary  to  the  common  law;  contrary 
to  Const,  c.  1,  arts.  4,  10,  guaranteeing  every  pei-son  "a  certain  remedy  " 
for  all  wrongs,  conformabU'  to  the  laws,  and  that  he  shall  not  be  de- 
prived of  liberty  "  except  by  the  laws;"  contrary  to  R.  L.  J^JJ  1(»99,  17(10, 
relative  to  reservation  of  questions  of  law  to  the  supreme  court  after  a 
verdict  of  guilty;  and  contrary,  also,  to  Fed.  Const.,  art.  6,  dwiaiing 
such  constitution,  and  all  laws  in  pursuance  thereof,  the.  supreme  law, 
binding  on  all  judges  in  every  state. 


Exceptions  from  Windsor  County  Court;  Taft,  Juilge. 


ating  liqiiori 

onsible,  made 

•p.  624.     Jir. 

ither  on  i>iin- 

n  who  voliin. 

able  of  distill- 

r  any  injury 

Hy  to  produce 

lie  life  of  any 

ie  causes  ])r(). 

lesaine;  that 

tinffuish  rif^-ht 

Jone,  yet  the 

■eases;  in  the 

'il  l)y  the  jury 
comniit  the 

.  and  provid- 
lurderin  the 
time  of  the 
the  question 
of  deliberate 


of  witness. 

t*s  to  having 
self  accused 

y. 

»t  reversible 

IS  well  as  of 
v;  contrary 
in  remedy  " 
not  be  <le- 
1«!>»,  1700, 
»m-t  after  a 
.  declaring 
|)reme  law, 


STATE  V.  BURPEE. 


5S7 


\gQ. 


Indictment  of  Frank  I.  Burpee  for  the  larceny  of  cattle. 
"Verdict  aind  judgment  of  guilty.  Respondent  excepts.  Ke- 
versed. 

Gilhort  A.  Davis  and  Frank  II.  Clarh,  for  respondent, 
ir.  ir.  Stu'lcney,  State's  Attorney,  for  the  State. 

Tiie  opinion  of  the  court  was  delivered  by  Tiioaipson,  J. 

1.  The  witness  Potter  was  an  important  witness  for  the 
prosecution.  He  had  slaughtered  the  cattle  named  in  the 
indicUuent.  He  testified  that  he  bought  them  of  respond- 
ent. The  respondent  claimed  this  testimony  to  be  untrue, 
and,  as  showing  a  motive  on  the  part  of  Potter  to  falsify 
in  til  is  rosi)ect,  offered  to  prove  that  Potter  had  been  arrested 
on  the  charge  of  stealing  the  cattle  in  question.  The  evidence 
offei'ed  » as  excluded.  In  this  there  was  error.  If  Potter  had 
a  motive  to  testify  falsely,  it  rendered  the  proof  of  the  claim 
that  he  had  done  so  more  probable.  If  he  was  under  susi)icion 
of  having  committed  the  identical  crime  in  question,  and  had 
been  arrested  for  it,  he  was  testifying,  as  it  were,  with  a  rope 
about  his  neck,  and  might  naturally  desire  and  seek  to  screen 
himself  in  the  account  he  gave  as  to  how  the  cattle  came  into 
his  ])osso!;sion.  It  has  been  repeatedly  held  by  this  court  that 
'•all  facts  and  circumstances  upon  which  any  reasonable  in- 
ference or  presumption  can  be  founded,  as  to  the  truth  or 
falsity  of  the  issue  or  of  a  disputed  fact,  are  admissible  in  evi- 
dence." liu'liardsoii  v.  Turnpike  Co.,  6  Vt.  490;  Randall  v. 
Pi'cxfon,  52  Vt.  198;  Beckleij  v.  Jar  vis,  65  Vt.  348;  Aiken  v. 
Kcnnixon,  58  Vt.  605;  Tvfts  v.  Town  of  Chester,  02  Vt.  350; 
Armstrong  v.  Nolle,  55  Vt.  428;  Tenneij  v.  Harvey,  63  Vt.  520. 

2.  The  evidence  of  Warren  Bailey  tended  to  prove  that  his 
general  knowledge  of  respondent's  witness,  Clark  Spaulding, 
was  such  as  to  include  a  knowledge  of  his  reputation  for  truth 
and  veracity,  and  it  was  not  error  to  allow  Builey  to  state 
what  Spaulding's  reputation  was  in  that  respect. 

3.  The  state's  attorney  put  a  question  to  respondent's  wit- 
ness, Mary  Poor,  which  the  court  ruled  she  might  answer,  to 
which  ruling  the  respondent  excepted.  Upon  the  refusal  of  the 
witness  to  answer  the  question,  it  was  not  insisted  upon,  and 
was  not  answered.  It  is  not  necessary  to  decide  whether  the 
question  was  proper  or  not.    Were  it  assumed  to  be  improper, 


\P 


■'■^tUf 


<! 


:t] 


538 


AMERICAN  CRIMINAL  REPORTS. 


the  defendant's  exception  can  not  avail  him.  A  judgment  will 
not  be  reversed  because  an  improper  question  is  asked,  if  no 
inadmissible  evidence  is  obtained  in  answer  to  it.  liandolph 
V.  Woodstock,  35  Vt.  291;  Carpenter  v.  Corinth,  58  Vt.  214; 
Smith  V.  Insurance  Co.,  60  Vt.  682. 

4.    The  respondent  requested  the  court  below  to  charge  the 
jury  that  "  in  a  criminal  case  the  jury  are  judges  of  the  law 
applicable  to  the  case  upon  the  testimony  given  in  court,  and 
that  the  jury  have  a  right  to  adopt  tlieir  own  theory  of  the 
law,  instead  of  the  law  as  laid  down  by  the  court."     The  re- 
fusal of  the  court  to  charge  as  requested  raises  the  question 
whether,  in  criminal  cases,  the  jurors  are  paramount  judges 
of  the  Jaw  as  well  as  of  the  fact.     In  1829,  this  question  was 
incidentallv  before  this  court  in  State  v.  Wilkinson,  2  Yt.  480. 
but  no  authorities  were  cited  in  the  opinion  of  the  court  on 
this  question,  and  the  charge  of  the  court  below  was  so  con- 
strued as  not  to  raise  it  for  decision.     In  1849,  in  the  case  of 
State  V.  Crotean,  23  Vt.  l4,  the  question  was  raised  for  de- 
cision, and  a  majority  of  the  court  held  that  in  all  criminal 
cases  the  jury  are,  by  the  common  law,  the  paramount  judges 
both  of  the  law  and  the  facts.     The  court  consisted  of  Royce, 
C.  J.,  and  Bennett,  Kellogg  and  Hall,  JJ.     Bennett,  J.,  dis- 
sented from  the  holding  of  the  majority  in  an  opinion  both 
able  and  vigorous.     In  1850  the  case  of  State  v.  Woodward,  23 
Vt.  97,  was  decide:!.     Royce,   C.  J.,  and  Redfijld  and  Kel- 
logg, J  J.,  constituted  the  court.     In  this  case  the  respondent 
was  indicted  for  a  nuisance  by  inclosing  a  portion  of  a  public 
common  in  the  town  of  Westford.     The  respondent  contended 
that  it  was  for  the  jury  to  say  whether  the  act  complained  of 
constituted  a  nuisance.     On  this  point  the  court  said :     "  It  is 
argued  that  the  question  whether  the  act  charged  upon  the  re- 
spondent was  a  nuisance  should  have  been  submitted  to  the 
jury,  and   in  support  of  it  several  cases  are  cited,  which  are 
claimed  as  sustaining  the  ])roposition.     Whether,  in  cases  of 
this  kind,  the  question  should  be  put  to  the  jury,  must  depend 
upon  the  character  of  the  nuisance  charged  in  the  indictment. 
If  the  act  complained  of  does  not  divest  the  i)roperty,  or  any 
part  of  it,  from  the  use  of  the  public,  or  in  any  manner  impair 
the  public  use  and  enjovment  of  it,  but  the  act  was  done  for 
the  purpose  of  making  the  use  more  beneficial  to  the  public, 
there  would  seem  to  be  a  manifest  propriety  in  submitting  the 


Igment  \vi\\ 
(sked,  if  no 
liandolph 
»8  Vt.  214; 

cliarn;e  the 
'f  the  law 
court,  and 
ory  of  the 
The  re- 
le  question 
'Unt  judofes 
lestion  was 
2  Vt.  480, 
>  court  on 
ras  so  con- 
the  case  of 
etl  for  de- 
ll criminal 
unt  judires 
of  Rovce, 

3tt,  J.,  '(lis- 

inion  both 
xlicard,  23 
and  Kel- 
•espondent 
>f  a  public 
contended 
plained  of 
J:     *'Itis 
pon  the  re- 
Btl  to  tlie 
which  are 
1  cases  of 
St  depend 
dictraent. 
<y,  or  any 
er  impair 
done  for 
0  public, 
tting  the 


STATE  V.  BURPEE. 


539 


same  to  the  jury,  and  the  eases  which  we   have  examined 
wliere  the  question  has  been  submitted  to  the  jury,  seem  to 
have  been  of  this  character.     But  where  the  act  complained  of 
is  the  taking  of  property  dedicated  to  the  use  of  the  public 
and  appropriating  it  to  private  use,  thereby  wholly  excluding 
the  public  from  the  enjoyment  of  it,  we  are  not  aware  of  any 
rule  of  law  that  requires  such  an  act  to  be  submitted  to  the 
iurv  to  sav  whether  it  is  a  nuisance.     Such  is  the  character  of 
the  act  with  which  the  respondent  is  charged;  and  in  the  judg- 
ment of  the  court  it  is,  ipso  facto,  in  law,  a  nuisance,  for  the 
commission  of  which  there  can  be  no  justification."    It  is  diffi- 
cult to  see  how  this  holding  can  be  reconciled  with  the  doc- 
trine adopted  without   reservation  or  exception  in  State  v. 
Croteau,  supra.    In  State  v.  Paddoch,  24  Vt.  312,  heard  in 
1852,  and  which  was  a  prosecution  for  selling  spirituous  liquor, 
the  court  below  "  directed  the  jury  to  return  a  verdict  of  guilty 
for  each  act  of  selling,"  to  which  the  resiwndent  excepted. 
In  passing  upon  this  exception  this  court  say :    "  It  is  argued 
that  the  jury,  in  cases  of  this  character,  are  judges  of  the  law 
and  fact,  and  that  under  this  charge  that  right  was  taken 
from  the  jury.     In  criminal  cases  it  is  the  duty  of  the  court  to 
aid  and  instruct  the  jury,  and  decide  upon  the  law  arising  in 
the  case.     But  the  jury  are  the  ultimate  judges  of  both  the 
law  and  the  fact,  and  this  right  can  not  be  taken  from  them. 
*    *    *    If  it  appeared   that  the  court  were  requested  to 
charge  or  inform  the  jury  that  they  were  the  judges  of  the 
law  and  the  fact,  and  the  court  neglected  or  refused  so  to  do, 
and  directed  them  as  to  the  verdict  they  were  to  bring  in,  the 
exceptions  would  have  been  well  taken;  but,  as  the  matter  now 
rests,  that  direction  in  the  choice  of  the  court  must  be  consid- 
ered as  an  expression  simply  of  his  opinion  of  the  law  in  the 
case,  and  which  it  was  his  duty  to  give,  and  as  informing  the 
jury  that  it  was  their  duty  to  return  such  a  verdict,  without 
in  any  way  controverting  their  ultimate  right  of  exercising 
their  own  judgment  in  the  case.     For  the  want  of  positive 
error,  affirmatively  appearing  in  the  exceptions,  this  objection 
is  overruled." 

If  the  jur}'^  had  the  legal  right  to  ignore  the  instructions  of 
the  court,  and  substitute  their  own  judgment  as  to  the  law  for 
that  of  the  court,  it  could  not  have  been  their  legal  duty  to 
return  such  a  verdict  as  the  court  directed.    Hence  the  court 


,  8'il  J 
I  T1  . 


i 


|i     li 


540 


AMERICAN  CRIMINAL  REPORTS. 


in  this  case  is  left  in  the  position  of  hohling  that  it  is  not  error 
for  the  court  below  to  charge  the  jury  that  it  is  their  duty  to  do 
a  thing,  although  it  is  not  their  legal  duty  to  do  it.  Again,  it  is 
not  easy  to  reconcile  the  reasoning  in  this  case  with  the  well- 
settled  rule  in  this  State — that  "  it  is  the  duty  of  the  court  to 
charge  fully  upon  all  the  points  of  law  in  the  case  "  witliout 
being  requested  to  do  so.     State  v.  Hopkins,  56  Vt.  250. 

In  State  v.  McDonald,  32  Vt.  491,  decided  in  January,  A.  I). 
18G0,  and  wl'ich  was  an  indictment  for  murder,  the  court  below 
instructed  the  jury  that  they  were  the  judges  of  the  law  and  tlie 
facts  under  the  law  of  this  state,  but  that  it  was  "a  most  non- 
sensical and  absurd  theory,"  and  that  tlie  jury  ''  would  l)e 
amply  and  fully  justified  in  relying  u])on  the  court  for  the  law 
that  should  govern  the  case,  and  holding  them  accountable  for 
that."  This  was  urged  as  error  in  this  court,  but  the  objection 
Avas  not  sustained.  In  passing  upon  this  exception  the  court 
said :  "  We  see  no  objection,  where  the  interference  of  a  jury 
is  directly  invoked  in  a  criminal  case,  to  the  judge  stating  to 
the  jury,  in  his  own  way,  that  this  rule  is  not  intended  for 
ordinary  criminal  cases;  that  it  is  a  mattar  of  favor  to  the  de- 
fendant, and  should  not  be  acted  upon  by  the  jury,  except  after 
the  most  thorough  conviction  of  its  necessity  and  propriety; 
that  any  departure  by  the  jury  from  the  law  laid  down  by  the 
court  must  be  taken  solely  upon  their  own  responsibility;  and 
that  the  safer  and  better  and  fairer  way,  in  ordinary  criminal 
cases,  is  to  take  the  law  from  the  "ourt,  and  they  are  always 
justified  in  doing  so.  This  is  substu  tially  what  was  done  by 
the  court  below,  and  we  see  no  just  ground  of  exce])tion  to  the 
mode  in  which  it  was  done."  In  State  v.  IFaynes,  36  Vt.  667, 
while  the  rule  laid  down  in  State  v.  Grotean,  sapra,  was 
recognized,  it  was  held  that  records  of  former  convictions  to 
enhance  the  penalty  need  not  be  offered  to  the  jury,  as  the  law 
then  stood,  but  might  be  introduced  after  a  verdict  to  affect  the 
sentence  only.  Poland,  C.  J.,  in  delivering  the  o])inion  of  the 
court,  said :  "  To  say  that  the  defendants  must  have  an  oppor- 
tunity to  have  this  question  of  law  submitted  to  the  jury,  so  as  to 
have  the  benefit  of  the  chance  of  their  deciding  it  contrarv  to 
law,  seems  to  us  a  very  great  absurdity."  In  State  v.  Barron,  37 
Vt.  57,  decided  in  1864,  the  court  said :  "  We  think  the  rule  is 
now  settled  in  this  state  that  in  criminal  cases  the  jury  are 
judges  of  the  law.    It  is  the  duty  of  the  court,  however,  to  in- 


m 


'  |'^V«   <'  i 


STATE  V.  BURPEE. 


not  error 

uty  to  do 

gain,  it  is 

li  the  wt'll- 

e  court  to 

'"  without 
250. 

[ids  a.  I), 
urt  hdow 
w  and  the 
most  non- 
would  he 
or  tlio  law 
mtahle  for 
objection 
the  court 
of  a  jury 
stating  to 
ended  for 
to  the  de- 
«cept  after 
projjrietv; 
wn  by  the 
Jility;  and 
y  criminal 
re  always 
s  done  by 
ion  to  the 
6  Vt.  6<>7, 
7>m,  was 
ictions  to 
LS  the  law 
aflFect  the 
on  of  the 
in  opj)or- 
v^,  so  as  to 
ntrarv  to 
(if fan,  87 
!ie  rule  is 
jury  are 
er,  to  in- 


541 


struct  the  jury  as  to  the  law  applicable  to  tlie  case  on  trial,  and 
if  tiie  jury  disregard  the  instructions  or  mistake  the  law,  and 
render  a  verdist  that  is  clearly  in  violation  of  law,  the  court 
may  for  that  reason  set  aside  the  verdict  if  the  respondent  is 
convicted."  The  court  thus  in  effect  held  that  jurors  are  judges 
of  the  law  to  acquit,  but  not,  in  the  discretion  of  the  trial 
court,  to  convict.  In  State  v.  Hopkins,  56  Vt.  203,  decided  in 
1883,  this  court  affirmed  the  ruling  of  the  court  bolow  deny- 
ing to  respondent's  counsel  the  right  and  privilege  of  reading 
to  the  jury  authorities  in  support  of  this  rule  of  law  for  wiiich 
he  contended.  In  passing  upon  the  question  the  court  say : 
*•  It  does  not  follow  that,  because,  the  jury  are  judges  of  tlie 
law,  counsel  can  read  what  they  please  to  them.  This  rule 
that  the  jury  are  judges  of  the  law  does  not  affect  the  course 
or  order  of  procedure  of  the  trial  in  the  least.  It  is  the  result 
of  the  powi'.r  of  the  jury,  rather  than  of  any  abstract  inherent 
r'Kjht,  and  the  trial  should  be  conducted  in  the  usual  course  of 
])roceedings." 

In  State  v.  2f<'jjet\  58  Vt.  457,  heard  in  January,  1886,  and 
Avhicli  was  an  indictment  for  murder,  the  court  below  in- 
structed the  jury  that  they  had  the  right  to  adopt  their 
theory  of  the  law  instead  of  that  of  the  court,  with  the  quali- 
fication that  they  must  not  adopt  a  rule  of  law  more  prejudi- 
cial to  the  respondent  than  the  law  laid  down  by  the  court. 
In  passing  upon  this  point  this  court  say :  "The  charge  was 
clearly  more  favorable  to  the  respondent  than  the  request  or 
the  law,  and  he  can  not  complain.  There  is  no  qualification 
of  the  right  of  the  jury,  in  a  criminal  cause,  to  disregard  the 
law  as  given  them  by  the  court,  and  adopt  their  own  theory; 
and  they  may,  in  the  exercise  of  this  power,  with  the  same 
])ropriety,  adoi)t  a  rule  of  law  more  prejudicial  to  the  respond- 
ent as  well  as  one  less  prejudicial."  In  State  v.  Freeman,  63 
Vt.  496,  heard  in  IVlay,  181)1,  which  was  a  complaint  for  pro- 
fane swearing,  based  upon  Rev.  Laws,  §  4254,  the  respondent 
claimed  in  the  trial  below  that  it  should  be  submitted  to  the 
jury  to  say  as  a  matter  of  law  whether  the  words  used  by  him 
were  profane  curses  or  not,  and  it  was  so  submitted  to  the 
jury,  and  they  found  the  respondent  guilty.  In  this  court  he 
contended  that  the  jury  made  a  mistake  as  to  the  law.  Upon 
this  contention  the  court  say :  *'  The  respondent  evidently 
was  not  satisfied  with  the  judgment  of  the  court  in  respect  to 


it^ 


■H  ; 


If   j 


512 


AMERICAN  CRIMINAL  REPORTS. 


the  law,  but  insisted  that  the  jury  should  pass  upon  both  linv 
and  fact;  and  they  were  permitted  to  do  so.  If  they  judged 
correctly  he  is  not  harmed;  if  erroneously,  as  it  was  a  matter 
of  his  own  seeking,  he  should  not  now  be  permitted  to  'un- 
ravel the  whole  proceedings'  to  be  relieved  from  a  misfortune 
which  he  has  brought  upon  himself.  If  he  was  erroneously 
convicted,  it  is  only  another  instance  of  '  the  engineer  hoist 
with  his  own  petard.' "  The  views  expressed  in  State  v.  Mri/ir, 
and  State  v.  Freeman^  supra,  are  in  accord  with  the  opinion  of 
the  court  delivered  by  Barrett,  J.,  in  State  v.  Clark,  37  Vt. 
471,  although  that  case  can  not  be  considered  an  authority,  as 
it  was  held  that  it  was  not  properly  before  the  court. 

These  are  all  the  cases  in  this  state  in  which  the  question 
whether  jurors  in  criminal  cases  are  judges  of  the  law  and  tlie 
fact  has  been  passed  upon,  and  they  all  substantially  follow 
the  doctrine  laid  down  in  State  v.  Croteau,  supra,  and  are 
based  upon  it,  with  the  exception  of  State  v.  Woodward,  sup/'a. 
It  will  be  observed,  however,  that  in  the  later  cases  there  has 
been  a  tendency  to  give  this  rule  such  effect,  even  to  its 
extreme  logical  results,  as  to  discourage,  and  ])erhaps  dete  *,  re- 
spondents from  invoking  it  in  their  behalf.  Neither  the  con- 
stitution of  this  state  nor  its  statutes  confer,  in  express  terms, 
this  power  upon  jurors,  if  they  ])ossess  it.  Rev.  Laws,  §  CS'J, 
provides  that "  so  much  of  the  common  law  of  England  as  is  ap- 
plicable to  the  local  situation  and  circumstances,  and  is  not  re- 
pugnant to  the  constitution  or  laws,  shall  be  law  in  this  state.'' 

Therefore  in  this  state  jurors  do  not  possess  the  legal  right 
to  judge  of  the  law  as  well  as  of  fact,  unless  jurors  had  such 
right  at  common  law.  If  such  right  existed  at  common  law, 
but  is  repugnant  to  the  constitution  and  laws  of  this  state, 
then  the  common  law  does  not  confer  such  right.  In  other 
words,  to  establish  that  jurors  have  such  right,  it  must  appear 
that  it  existed  at  common  law,  and  that  it  is  not  repugnant  to 
our  constitution  and  laws.  The  decisions  of  the  courts  of  jus- 
tice contain  the  most  certain  and  authoritative  evidence  of 
what  the  rules  of  the  common  law  are.  1  Bl.  Comm.,  pp.  CO- 
TS; 1  Kent  Comm.,  p.  473.  That  respondents  on  trial  have 
claimed  jurors  to  be  judges  of  the  law,  or  that  jurors  in  some 
instances  have  rei-urned  verdicts  apparently  contrary  to  the 
law  as  laid  down  by  the  court,  affords  no  evidence  of  what  the 
common  law  is  on  this  subject.     In  State  v.  Croteau,  supra,  the 


STATE  V.  BURPEE. 


543 


majority  opinion  does  not  cite  a  single  English  decision  wliich 
supports  the  rule  there  laid  down.  De  Lolme  on  the  English 
Constitution  is  there  cited  in  support  of  the  doctrine.  This 
work,  strictly  speaking,  was  only  an  essay.  It  has  been  Avell 
said  that  its  author  "  must  be  regarded  simply  as  a  learned 
foreigner,  and  sometimes  showing  that  want  of  thoroughness 
and  precision  which  even  a  learned  man  may  display  when 
writing  on  subjects  which  his  previous  education  had  not  fitted 
him  to  appreciate,  and  especially  when  discussing  such  a  sub- 
ject as  the  common  law  of  England."  He  cites  no  authority 
in  support  of  what  he  says  in  regard  to  jury  trials  in  criminal 
cases.  The  court  in  /State  v.  Croteau,  also  rely  upon  St.  Westm. 
II,  c.  30,  13  Edw.  I.  (A.  D.  12S5)as  showing  that  the  common 
law  is  as  stated  in  the  majority  opinion.  It  is  difficult  to  see 
how  it  can  be  said  to  be  an  authority  for  the  doctrine  there 
declared  to  be  the  common  law.  This  statute,  so  far  as  it 
relates  to  this  subject,  is  as  follows :  '  The  justices  assigned  to 
take  assizes  shall  not  compel  the  jurors  to  say  precisely  whether 
it  be  disseizin  or  not,  so  that  they  do  show  the  truth  of  the 
fact,  and  require  aid  of  the  justices;  but  if  they,  of  their  own 
accord,  are  willing  to  say  that  it  is  disseizin  or  not,  their  ver- 
dict shall  be  admitted  at  their  own  peril."  2  Co,  Inst.,  pp.  421, 
422.  In  commenting  upon  this  statute  the  court  in  I*ierce  v. 
Stat£^  13  N.  II.  536,  well  say :  "  Now,  in  giving  construction  to 
this  act,  Lord  Coke  says  that  the  first  question  was  whether,  in 
case  of  assize,  if  the  issue  were  joined  upon  a  collateral  matter 
out  of  the  point  of  the  assize,  upon  this  special  issue  the  jury 
might  give  a  special  verdict;  and  it  was  resolved  that  in  all 
actions  the  jury  might  find  the  special  matter  of  fact  pertinent, 
and  pray  the  direction  of  the  court  for  the  law.  2  Co.  Inst.  425. 
If  any  collateral  matter  distinct  from  the  general  issue  of  nul 
disseizin,  etc.,  were  pleaded,  then  the  assize  was  turned  into  a 
jury,  instead  of  a  separate  recognition  to  try  the  fact.  Glan- 
ville,  lib.  13,  cc.  20,  21.  The  collateral  matter  was  determined 
by  the  same  recognitors  in  modvm  jurator.  The  jury  were, 
therefore,  limited  to  the  collateral  matter  of  fact  out  of  the 
point  of  assize.  But  Glanville  says  that  the  assize  could  not 
decide  upon  the  law  connected  with  disseizin.  He  states  that, 
if  the  demandant  object  to  put  himself  upon  the  grand  assize, 
he  must  show  some  cause  why  the  assize  should  not  proceed. 
If  the  objection  be  admitted,  the  assize  itself  shall  thereby 


12    f 


.'MssB^a 

i 

1 

■  ''-"*' 

1 

f 

i 

I 

it 

|m:-:| 

•i 

i 

^■ii^l:!i'4a 

I 

644 


AMERICAN  CRIMINAL  REPORTS. 


!    H^Mi 


m 

1 

m 

^p 

IK' 

cense,  so  that  the  matter  shall  be  verbally  pleaded  and  deter- 
mined in  court,  because  it  is  then  a  question  of  law,  etc.  If 
the  assize  could  net  determine  questions  of  law,  it  would  be 
most  jrroundless  assumption  to  say  that  they  could  be  deter- 
mined by  the  jury  who  were  to  And  only  collateral  facts  out 
of  the  points  of  assize.  The  citation  from  Glanville  is  a  stronp; 
authority  against  the  right  of  the  jury  to  decide  the  law  ujjon 
the  general  issue  involving  law  and  fact.  The  im])lication  from 
the  latter  part  of  the  clause  cited  from  St.  Westm.  II,  is  u 
strong  argument  against  it.  If  the  jury,  of  their  own  accord, 
are  willing  to  say  that  it  is  disseizin  or  not,  their  verdict  shall 
be  admitted  at  their  own  peril.  Uut  what  peril  could  they 
incur  if,  by  deciding  the  law,  they  simply  exorcised  a  right 
given  to  them  by  the  statute  ?  This  phraseology  is  mo^t  sin- 
gular, if  the  statute  was  intended  to  submit  the  law  to  them. 
The  reasonable  construction  of  it  is.  that  if  the  jury  will  under- 
take to  decide  the  law,  they  shall  be  subject  to  such  ]>enalty  as 
may  be  imposed  upon  them  for  exceeding  their  jurisdiction. 
If  they  should  incur  a  ]ienalty,  the  act  fordoing  which  the 
penalty  is  imjwsed  must  be  illegal,  for  nothing  is  better  settled 
than  that  a  penalty  attached  to  the  performance  of  an  act 
makes  the  act  itself  unlawful." 

In  his  great  argument  in  support  of  a  motion  for  a  new  trial 
in  the  case  of  I^ex  v.  Dean,  of  St.  Am2>h„  3  Term  R.  428,  note 
a,  (1  Ersk.  Speech.,  Ed.  1870)  170,  Lord  Erskine  contended 
that  from  the  words  of  this  statute  the  right  of  the  iurv  to 
decide  the  law  upon  the  general  issue  was  vested  in  them  by 
the  English  constitution;  but,  notwithstanding  all  the  learning 
and  genius  with  which  he  sought  to  maintain  this  i)roposition, 
he  does  not  cite  a  single  adjudged  case  in  support  of  it.  The 
court  in  State  v.  Croteau  also  cite  Litt.  Ten.  §  368,  and  Co.  Litt. 
228^,  as  supporting  their  holding.  After  speaking  of  giving  a 
general  verdict  in  an  assize,  Littleton,  in  section  308,  says  :  "  In 
such  case,  where  the  inquest  may  give  their  verdict  at  large, 
if  they  will  take  upon  themselves  the  knowledge  of  the  law, 
they  may  give  their  verdict  generally,  as  is  put  in  their  charge; 
as,  in  the  case  aforesaid,  they  may  well  say  the  lessor  did  not 
disseize  the  lessee  if  they  will."  The  comments  oi  the  court 
in  Pierce  v.  State,  supra,  upon  this  passage  from  Littleton  are 
so  sound  that  we  quote  them.  The  court  say:  "  Now,  it  is  to  be 
remembered  that  Littleton,  in  the  section  cited,  was  not  exam- 


STATE  V.  BURPEE. 


545 


and  (Ictcr- 
r»  etc.    Jf 
would  be 
bo  (loter- 
facts  out 
is  a  stronrr 
Jaw  upon 
ition  fnjiu 
I".  II,  is  a 
Vn  accord, 
frdict  shall 
Jould  they 
tl  a   right 
moi^t  sin- 
to  them, 
will  under- 
penalt.y  as 
irisdiction. 
which  the 
;ter  settled 
of  an  act 

I  new  trial 
.  428,  note 
contended 
he  jury  to 
n  them  by 
e learninff 
'oposition, 
f  it.     The 
1  Co.  Litt. 
f  g-iving  a 
lys:  "In 
at  large, 
the  law, 
ir  charge; 
rdid  not 
he  court 
leton  are 
it  is  to  be 
ot  exam- 


ining the  rights  or  powers  of  juries.  lie  was  discussing  mat- 
ters very  different.  The  passage  was  introduced  in  explain- 
ing the  pleadings  in  real  actions  relative  to  estates  upon  con- 
dition. His  remarks  are  in  brief  that,  after  an  estate  tail  is 
determined  for  default  of  issue,  the  donor  may  enter  by  force 
of  the  condition,  but  in  the  pleadings  he  must  vouch  a  record, 
or  show  a  writing  under  seal,  proving  the  condition;  but, 
though  no  writing  was  ever  made  of  the  condition,  a  man  may 
be  aided  upon  such  condition  by  a  verdict  taken  at  large  upon 
an  assize  of  novel  disseizin,  for,  as  well  as  the  jury  may  have 
conusance  of  the  lease,  they  also  as  well  may  have  conusance 
of  the  condition  which  was  declared  and  rehearsed  upon  the 
lease;  and,  in  all  actions  where  the  justices  will  take  the  ver- 
dict at  large,  there  the  manner  of  the  whole  entry  is  put  in 
issue."  lie  then  adds :  "  If  they  will  take  upon  them  the 
knowledge  of  the  law  upon  the  matter,  they  may  give  their 
verdict  generally,  as  put  in  their  charge.  An  extended  exami- 
nation of  the  rights  of  juries  would  have  been  foreign  to  the 
particular  matter  in  hand,  and  it  was  necessary  for  him  merely 
to  state  the  effect  of  a  general  verdict  relative  to  estates  upon 
condition.  Littleton's  Treatise  was  written  in  the  reign  of 
Edward  IV.,  between  the  years  1461  and  1483,  and  his  remarks 
are  nothing  more  than  a  cursory  statement  of  the  provision  of 
St.  Westm.  II.  It  is  plain  from  Lord  Coke's  Commentary  that 
he  did  not  understand  Littleton  as  laying  down  the  limits  of 
the  duties  of  the  jurors,  or  meaning  to  go  any  further  than  to 
allude  to  this  statute.  Coke  says :  *  Although  the  juries,  if 
they  will  takv^  upon  them  (as  Littleton  here  saith)  the  knowl- 
edge of  the  law,  may  give  a  general  verdict,  yet  it  is  dangerous 
for  them  so  to  do,  for,  if  they  doe  mistake  the  law,  they  runne 
into  the  danger  of  an  attaint.'  Co.  Litt.  228a.  This  by  no 
means  admits,  but  substantially  denies,  the  right  of  juries  to 
decide  the  law.  If  they  may  settle  the  law,  their  conclusion 
is  the  law,  and  they  can  not  '  runne  into  the  danger  of 
attaint.'  " 

We  do  not  think  the  authorities  support  the  decision  in 
State  V.  Croteau,  supra.  In  State  v.  Croteau,  after  citing  sev- 
eral early  English  cases  in  which  jurors  had  been  lined  or 
imprisoned  for  disregarding  the  instructions  of  the  judges  as 
to  the  law,  the  court  cite  BusheWa  Caae,  Vaughn,  135,  5  St. 
85 


III: 


m  \ 


f  i' 


54G 


AMERICAN  CRIMINAL  REPORTS. 


i> 


Tr.  099,  as  the  final  vindication  of  the  claim  that  jurors  at  com. 
inon  law  are  judges  of  the  law  In  criminal  cases.    This  was 
not  the  ground  of  the  decision  in  that  case.    That  case  aiose 
in  this  way:  William  Penn  and  .William  Meadjjkvcro  tried 
together  at  the  Old  Bailey  before  a  court  of  oyer  and  terminer 
for  a  breach  of  the  peace  in  being  concerned  in  a  tumultuous 
and  unlawful  assembly.    The  proof  tended  to  show  that  two 
or  three  hundred  persons  had  quietly  and  peaceably  mot  in 
Grace  street,  London,  and  listened  to  the  preaching  of  Penn. 
Penn  contended  that  there  had  been  no  breach  of  the  peace. 
The  court  charged  against  the  prisoners,  but  disregarding  the 
charge,  the  jury  returned  a  verdict  of  not  guilty.    The  court 
thereupon  fined  them  forty  marks  each,  and  committed  them 
to  Newgate.    Bushell,  one  of  the  jurors,  brought  his  suit  of 
habeas  corpus  to  the  court  of  common  pleas.    The  return  upon 
the  writ  was  that  Bushell,  being  one  of  the  jury,  "  had  ac- 
quitted Penn  and  Mead  against  evidence,  and  that  the  jury 
did  acquit  against  the  direction  of  the  court  in  matter  of  law." 
Tlve  court  put  its  decision  upon  the  narrow,  th(mgh,  for  the 
case,  conclusive  ground,  that  the  general  issue  embracing  fact 
as  well  as  law,  it  can  never  be  proved  that  the  jury  believed 
the  testimony  on  which  the  fact  depended,  and  in  reference  to 
which  the  direction  was  given,  and  so  they  can  not  be  shown 
to  be  guilty  of  any  legal  misdemeanor  in  returning  a  verdict, 
though  apparently  against  the  direction  of  the  court  in  matter 
of  law.    The  relator  was  accordingly  discharged,  and  it  has 
been  the  settled  law  from  that  day  to  this,  in  England  and  this 
country,  that  jurors  can  not  be  called  to  account  for  their  ver- 
dict.   This,  however,  is  far  from  saying  that  it  is  their  legal 
province  to  override  the  law  laid  down  by  the  court,  and  to 
declare  it  for  themselves.    We  think  such  a  rule  contrary  to 
the  fundamental  maxims  of  the  common  law,  and  to  adjudged 
cases  in  England,  and  the  uniform  practice  of  its  highest 
courts.    In  his  able  work  on  Trial  by  Jury,  Mr.   Forsyth 
says :  "  It  was  early  provided  that  the  jury  should  not  entangle 
themselves  with  questions  of  law,  but  confine  themselves  simply 
and  exclusively  to  facts.    This  rule  was  afterward  expressed 
by  the  well-known  maxim  called  '  that  decantatum  in  our 
books,' — ad  questionem  foicti  non  respondent  judices;  ad  ques- 
tionem  juris  non  respondent  juratores  [it  is  the  office  of  the 
judge  to  instruct  the  jury  in  points  of  law;  of  the  jury  to 


STATE  V.  nUItPEE. 


641 


decide  on  matters  of  fact — Brot  m,  Log.  Max.  (Oth  Amor.  Ed.) 
80]— an  invaluable  principle  ot  jurisprudence  which  more  than 
anything  else  has  upheld  the  character  and  maintained  the 
etllciency  ^English  juries  as  tribunals  for  the  judicial  investi- 
gation of  truth."  Forsyth,  Jury  Tr.  (Morgan's  Ed.)  2 IG.  In 
further  discussing,  the  claims  of  some  writers  that  '*the  jury 
are  entitled  in  all  cases  where  no  special  pleas  have  been  put 
on  the  record,  to^give  a  general  verdict  accord in^r  to  their  own 
views  of  the  law,  in  criminal  as  well  as  civil  cases,"  he  says 
(pages  217-219) :  "But  it  is  impossible  to  uphold  the  doctrine. 
It  is  founded  on  confusion  between  the  ideas  of  power  and 
rijrht  *  *  *  Although  juries  havo  undoubtedly  the  power 
in  such  cases  to  take  the  law  into  their  own  hands,  and  so,  it 
may  be,  defeat  the  ends  of  justice,  or  do  what  they  believe  to 
bo  substantial  justice,  they  do  so  at  a  sacrifice  of  conscience 
and  dut}'.  The  law  can  not  depend  upon  a  verdict  of  a  jury, 
whose  office  is  sim])ly  to  find  the  ti'uth  of  disputed  facts;  and 
yet  such  must  be  the  result,  if  they  may  decide  contiary  to 
what  the  judge,  the  authorized  expounder  of  the  law,  lays  down 
for  their  guidance.  This  would  introduce  the  most  miserable 
uncertainty  as  to  our  rights  and  liberties,  the  inlsera  servltnn 
of  mfjmnjm,  and  be  the  most  fatal  blow  that  could  be  struck 
at  the  existence  of  trial  by  jury.  Can  it  for  a  moment  be  con- 
tended that  twelve  men  in  a  jury  box  are  to  determine  that 
not  to  be  an  offense  which  the  law,  under  a  penalty,  forbids  ? 
]\[ay  i\\cy  pronounce  that  to  be  manslaughter  or  justifiable 
homicide  which  the  law  declares  to  be  murder  ?  If  so,  then 
they  may,  by  their  verdict,  abrogate,  b}'  rendering  ineffective, 
every  enactment  of  the  legislature,  and  they  become  a  court 
of  appeal  from  the  solemn  decision  of  parliament  and  the 
crown.  That  they  can  do  so  is  not  disputed,  but  so  can  the 
judges  give  judgments  contrary  to  law,  if  they  choose  to  dis- 
regard their  oaths  and  yield  to  the  influence  of  corrupt  motives. 
In  both  cases  the  law  presumes  that  men  will  act  according  to 
their  duty.  Indeed,  it  is  difficult  to  understand  how  any  one 
acquainted  with  the  principles  and  settled  practice  of  the  En- 
glish law  can  assert  that  it  sanctions  the  doctrine  which  is  here 
combated." 

Mr.  Forsyth,  after  showing  that  juries  became  unpopular 
and  fell  into  disuse  in  Scandinavia  and  Germany  for  the  reason 
that  they  there  were  invested  with  the  whole  judicial  power — 


61S 


AMERICAN  CRIMINAL  REPORTS. 


the  right  to  determine  the  law  as  well  as  the  fact — says  (pafes 
9,10):  "  Far  otherwise  has  been  the  case  in  England.  Here  the 
jury  never  usurped  the  functions  of  the  judge.  They  were 
originally  called  to  aid  the  court  with  information  upon  ques- 
tions of  fact,  in  order  that  the  law  might  be  properly  applied; 
and  this  has  continued  to  be  their  province -to  the  present  dav. 
The  utility  of  such  an  office  is  felt  in  the  most  refined  as  well  as 
in  the  simplest  state  of  jurisprudence.  ♦  *  *  Hence  it  is 
that  the  English  jury  flourishes  still  in  all  its  pristine  vigor, 
while  what  are  improperly  called  the  old  juries  of  the  conti- 
nent have  either  sunk  into  decay  or  been  totally  abolished." 
In  ToxonsencVs  Case,  1  Plow.  Ill,  decided  about  A.  D.  1534, 
the  jury  undertook  to  decide  a  point  of  law  as  to  a  remitter 
and  the  finding  was  held  void  because  it  was  not  the  duty  of 
the  jury  to  judge  what  the  law  is.  The  casf  of  Willion  v. 
Berl'ley,  Id.  223,  is  express  upon  the  same  point.  The  court 
there  said :  "  At  the  beginning  of  our  law  it  was  ordained  that 
matters  of  fact  should  be  tried  by  twelve  men  of  the  country 
where  the  matter  arises,  and  matters  of  laAV  by  twelve  judges 
of  the  law,  for  which  purpose  there  were  six  judges  here  and 
six  in  the  king's  benc'i,  who  upon  matters  of  law  used  to 
assemble  together  in  a  certain  place  in  order  to  tliscuss  what 
the  law  was  therein,  so  that,  if  a  traverse  should  be  here  taken, 
it  would  be  to  make  twelve  ignorant  men  of  the  country  try 
that  whereof  they  are  not  judges,  and  which  does  not  belong 
to  them  to  try."  The  case  of  Grendon  v.  Bhhoj>  of  Lincoln, 
Plow.  493,  is  also  to  the  same  effect.  In  1649  John  Lilburno 
was  tried  for  treason.  At  his  trial  he  retorted  upon  the  judges 
by  saying:  "You  that  call  yourselves  judges  of  the  law  are 
no  more  but  Norman  intruders;  and  in  deed  and  in  truth,  if 
the  jury  please,  are  no  more  but  ciphers  to  pronounce  their  ver- 
dict " — a  doctrine  which  caused  Jennin,  J.,  to  exclaim,  "  Was 
there  ever  such  a  damnable,  blasphemous  heresy  as  this  is,  to 
call  the  judges  of  the  law  ciphers  ? "  The  jury  were  instructed 
that  they  were  not  judges  of  the  law,  and  that  they  "  ought  to 
take  notice  of  it  that  the  judges,  who  are  twelve  in  number, 
and  whoare  sworn,  have  ever  been  the  judges  of  the  law  from  the 
first  time  that  we  can  ever  read  or  hear  that  the  law  was  truly 
expressed  in  England,  and  the  jury  only  judges  of  matter  of 
fact."  2  Harg.  St.  Tr,  19,  70;  Forsyth  Jury  Tr.  220.  In 
Algernon  Sidney's  Case,  3  Harg.  St.  Tr.  818,  tried  in  1683,  and 


W' 


'^^'im 


STATE  V.  BURPEE. 


f)49 


in  Rex  V.  Onehj/,  2  Strange  766,  tried  in  1727,  the  jury  were 
instructed  to  the  same  eflfect.    In  Ktnff  v.  Foole,  Hardw.  Cas. 
Temp.  2S,  determined  in  1734,  and  which  was  a  criminal  infor 
raation  in  the  nature  of  a  qiM  warranto  to  try  the  validity  of 
an  election  to  a  corporate  office,  and  which  had  been  submitted 
to  a  jury,  a  motion  was  made  to  set  aside  the  verdict  as  against 
law.    In  passing  upon  this  motion  Lord  Hardwicke  said : 
"  The  thing  that  governs  greatly  in  this  determination  is  that 
points  of  law  are  not  to  be  determined  by  juries;  juries  have  a 
power  by  law  to  determine  matters  of  fact  only;  and  it  is  of 
the  greatest  consequence  to  the  law  of  England,  and  to  the 
subject,  that  these  powers  of  the  judge  and  the  jury  are  kept 
distinct — that  the  judge  determine  the  law,  and  the  jury  the 
fact;  and  if  they  ever  come  to  be  confounded  it  will  prove  the 
confusion  and  destruction  of  the  law  of  England."    The  Dean 
of  St.  Asaph's  case,  supra,  was  determined  in  1789,  and  was  an 
indictment  for  libel.    Mr.  Erskine  defended  him,  and  insisted 
that  the  jury  had  the  right  to  pass  upon  the  whole  issue, 
including  the  law  as  well  as  the  fact.    But  Buller,  J.,  instructed 
tlie  jury  that  the  judges  were  appointed  to  decide  the  law,  the 
jury  to  decide  the  fact;  and  that  whether  the  publication 
cliarged  in  the  indictment  was  a  libel  or  not  was  merely  a 
question  of  law,  with  which  the  jury  had  nothing  to  do.     1 
Ersk.  Speech.  (Ed.  1870)  133.     Erskine  moved  for  a  new  trial 
on  the  ground  of  misdirection,  and  in  support  of  the  motion  is 
said  to  have  made  one  of  the  most  captivating  arguments  ever 
listened  to  in  Westminster  Hall;  but  the  judges  unanimously 
sustained  the  ruling  of  the  court  below.    In  delivering  his 
opinion  in  this  case.  Lord  Mansfield,  who  had  been  chief  jus- 
tice of  the  king's  bench  for  twenty-eight  years,  said :  "  The 
fundamental  definition  of  trial  by  jury  depends  upon  a  uni- 
versal maxim  that  is  without  an  exception.    Though  a  defini- 
tion or  maxim  Avithout  an  exception,  it  is  said,  is  hardly  to 
be  found,  yet  this  I  take  to  be  a  maxim  without  an  exception, 
— ad  questlonem  juris  non  resjpondentjuratores;  ad  quest ioneni 
faeti  non  respondent  judices.    Where  a  question  can  be  sev- 
ered by  the  form  of  a  pleading,  the  distinction  is  preserved 
upon  the  face  of  the  record,  and  the  jury  can  not  encroach 
upon  the  jurisdiction  of  the  court.    When,  by  the  form  of  the 
pleading,  the  two  questions  are  blended  together,  and  can  not 
be  separated  upon  the  face  of  the  record,  the  distinction  is  pre- 


550 


AMERICAN  CRIMINAL  REPORTS. 


served  by  the  honesty  of  the  jury.  The  constitution  trusts 
that,  under  the  direction  of  a  judge,  they  will  not  usurp  a 
jurisdiction  which  is  not  in  their  province.  They  do  not  know, 
and  are  not  presumed  to  know,  the  law;  they  are  not  sworn 
to  decide  the  law;  they  are  not  required  to  decide  the  law. 
*  *  *  But  further,  upon  the  reason  of  the  thing  and 
the  eternal  principles  of  justice,  the  jury  ought  not  to  assume 
the  jurisdiction  of  the  law.  As  I  said  before,  they  do  not 
know,  and  are  not  presumed  to  know,  anything  of  the 
matter.  *  *  *  It  is  the  duty  of  the  judge,  in  all  cases 
upon  general  issues,  to  tell  the  jury  how  to  do  right,  though 
they  have  it  in  their  power  to  do  wrong,  which  is  a  matter 
between  God  and  their  own  consciences.  To  be  free  is  to  live 
under  a  government  of  law.  *  *  *  Miserable  is  the  con- 
dition of  individuals,  dangerous  is  the  condition  of  the  state, 
if  there  is  no  certain  law,  or,  which  is  the  same  thing,  no  cer- 
tain administration  of  law  to  protect  individuals  or  to  guard 
the  state."  We  have  been  unable  to  find  any  English  case 
since  the  Dean  of  St.  Asaph's  case,  holding  that  that  case  was 
not  decided  in  accordance  with  the  common  law  and  the  uni- 
form course  of  decision, 

The  controversy  in  England  over  the  question  whether  jurors 
are  judges  of  the  law  originated  largely  from  the  course  of 
procedure  in  prosecutions  for  libel.  Under  the  lav.'  as  it  stood 
at  the  time  of  the  Dean  of  St.  Asaph's  case,  and  for  some 
years  after,  if  the  respondent  made  no  attempt  at  justification 
on  trial  the  only  questions  submitted  to  the  jury  were  whether 
the  respondent  was  guilty  of  publishing  the  alleged  libel,  and 
wliether  the  innuendoes  were  true  as  charged.  The  judges 
in  such  cases  were  accustomed  to  direct  the  jury  to  return  a 
verdict  of  guilty  upon  proof  of  publication  and  truth  of  the 
innuendoes,  without  instructing  them  as  to  whether  the  paper, 
if  they  so  found,  Avas  or  was  not  a  libel.  The  question  of  the 
malicious  intent  charged  in  the  indictment  was  not  submitted 
to  the  jur}'.  If  the  verdict  was  guilty,  whether  the  publication 
was  libelous  was  determined  by  the  court,  and,  if  held  to  be 
libelous,  then  malicious  intent  was  implied  as  a  matter  of  law, 
and  need  not  be  proved.  The  respondent  Avas  thus  put  to  the 
trouble  and  expense  of  moving  in  arrest  of  judgment  or  suing 
out  a  writ  of  error  if  he  thought  the  publication  innocent. 
The  doctrine  of  implied  malice,  which,  when  applied  to  homi- 


STATE  V.  BURPEE. 


551 


cides,  has  been  questioned  by  some  of  the  ablest  jurists  in  this 
country  and  in  England,  was  very  obnoxious  to  respondents 
when  thus  applied  to  libels.  It  was  strenuously  contended 
that  the  intent  with  which  an  alleged  criminal  act  was  done 
was  not  a  question  of  law,  but  one  of  fact,  to  be  deUrmined 
by  the  jury,  and  that  the  jury  should  be  permitted  to  pass  upon 
the  malicious  intent  in  libel  cases,  the  same  as  in  other  criminal 
cases.  After  a  discussion  of  this  question  in  the  courts  and 
parliament  for  over  half  a  century  in  England,  it  was  finally 
settled  in  A.  D.  1792,  by  St.  32  Geo.  III.  c.  60,  known  as  '•  Fox's 
Libel  Act,"  which  provides  that  in  prosecutions  for  libel  the 
jury  may  give  a  general  verdict  of  guilty  or  not  guilty  upon 
the  whole  matter  put  in  issue,  and  they  shall  not  be  required 
or  directed  by  the  court  to  find  the  respondent  guilty  merely 
on  proof  of  publication  and  of  the  truth  of  the  innuendoes. 
This  act  further  provides  that  on  every  such  trial  the  court 
shall,  according  to  their  discretion,  give  their  opinion  and  di- 
rection to  the  jury  on  the  matter  in  issue,  in  like  manner  as  in 
other  criminal  cases;  that  nothing  in  the  act  shall  prevent  jurors 
from  finding  a  special  verdict  in  their  discretion,  as  iu  other 
criminal  cases;  and  that,  in  case  the  respondent  is  found  guilty 
by  the  jury,  he  may  move  an  arrest  of  judgment  on  such 
ground  and  in  such  manner  as  by  law  he  might  have  done  be- 
fore the  passage  of  the  act.  It  has  been  claimed  that  this  act 
made  jurors,  at  least  in  libel  cases,  judges  of  the  law,  and  de- 
clared such  to  be  the  common  law.  But  such  is  not  the  con- 
struction given  to  it  in  England.  In  Hex  v.  Burdett,  4  Barn. 
&  Aid.  131,  6  E.  C.  L.  420,  Best,  J.,  says :  "  The  judge  is  the 
judge  of  the  law  in  libel  as  in  all  other  cases."  Beg  v.  Parish^ 
8  Car.  &  P.  94;  34  E.  C.  L.  628;  Panniter  o.  Copeland,  6  Mees. 
&  "W.  105  ;  Levi  v.  Milne,  4  Bing.  195;  Forsyth,  Jury  Tr.  (Mor 
gan's  Ed.)  233. 

After  a  careful  examination  of  the  authorities,  Judge  Curtis, 
in  U.  S.  V.  Harris,  1  Curt.  C.  C.  53,  says :  *'  Considering  the  in- 
tense interest  excited,  the  talent  and  learning  employed,  and 
consequently  the  careful  researches  made  in  England,  near  the 
close  of  the  last  century,  when  the  law  of  libel  was  under  dis- 
cussion in  the  courts  and  in  parliament,  it  can  not  be  doubted 
that,  if  any  decision  having  the  least  weight,  could  have  been 
proc'uced  in  support  of  the  general  proposition  that  juries  are 
judges  of  the  law  in  criminal  cases,  it  would  then  have  been 


552 


AMERICAN  CRIMINAL  REPORTS. 


brought  forward.    I  am  not  aware  that  any  such  was  pro- 
duced.   And  the  decision  of  the  king's  bench  in  Rex  v.  Dean 
of  St.  Amph,  3  Terra  R.  428,  note,  and  the  answers  of  the  twelve 
judges  to  the  questions  propounded  to  them  by  the  house  of 
lords,  assume,  as  a  necessary  postulate,  what  Lord  Mansfield  so 
clearly  declares  in  terms,  that  by  the  law  of  England  juries  can 
not  rightfully  decide  a  question  of  law.    Passing  over  what 
was  asserted  by  ardent  partisans  and  eloquent  counsel,  it  will 
be  found  that  the  great  contest  concerning  what  is  known  in 
history  as '  Mr.  Fox's  Libel  Bill '  was  carried  on  upon  quite  a 
different  ground  by  its  leading  friends;  a  ground  which,  while 
it  admits  that  the  jury  are  not  to  decide  the  law,  denies  that 
the  libelous  intent  is  matter  of  law,  and  asserts  that  it  is  so 
mixed  with  the  fact  that  under  the  general  issue  it  is  for  the 
jury  to  find  it  as  fact.    34  Ann.  Reg.  p.  180;  29  Pari.  Hist.  De- 
bates in  the  House  of  Lords,  and  particularly  Lord  Camden's 
Speeches.    Such  I  understand  to  be  the  effect  of  that  great, 
famous,  declaratory  law.    St.  32  Geo.  III.  c.  60.    The  defend- 
ant's counsel  argued  that  this  law  had  declared  that  on  trials 
for  libel  the  jury  should  be  allowed  to  pass  on  law  and  fact  as 
in  other  criminal  cases.    But  this  is  erroneous.    Language 
somewhat  like  this  occurs  in  the  statute,  but  in  quite  a  different 
connection,  and,  as  I  think,  with  just  the  opposite  meaning. 
*  The  court  or  judge  before  whom  such  indictment  or  informa- 
tion shall  be  tried  shall,  according  to  their  or  his  discretion, 
give  their  or   his  opinion  and  directions  to   the  jury  on 
the  matter  in  issue  between  the  king  and  the  defendant,  in 
like  manner  as  in  other  criminal  cases.'    This  seems  to  me  to 
carry  the  clearest  implication  that,  in  this  and  all  other  crim- 
inal cases,  the  jury  may  be  directed  bv  the  judge;  and  that, 
while  the  object  of  the  statute  was  to  declare  that  there  was 
other  matter  of  fact  besides  publication  and  the  innuendoes 
to  be  decided  by  the  jury,  it  was  not  intended  to  interfere  with 
the  proper  province  of  the  judge  to  decide  all  matters  of  law." 
lu  1   RusS.  Crimes  (8th  Amer.  Ed.)  p.  263,  it  is  said:    "In 
crhninal  cases  the  judge  is  to  define  the  crime,  and  the  jury  are 
to  find  whether  the  party  has  committed  that  offense.    This 
act  made  it  the  same  in  cases  of  libel,  the  practice  having  been 
otherwise  before.    It  has  been  the  course  for  a  long  time  for 
the  judge  in  cases  of  libel,  as  in  other  cases  of  a  criminal  na- 
ture, first  to  give  a  legal  definition  of  the  offense,  and  then 


STATE  V.  BURPEE. 


553 


was  pro- 
la?  v.JJeati 
'he  twelve 
house  of 
|ansfield  so 
juries  can 
ver  what 
Isel,  it  will 
known  in 
•n  quite  a 
lich,  while 
lenies  that 
at  it  is  so 
is  for  the 
.  Hist.  De- 
Camden's 
lat  fi:reat, 

lie  defend- 
on  trials 
nd  fact  as 

'  I-anguage 

a  different 
meaning. 

r  informa- 

liscretion, 
jury  on 

Jndant,  in 
to  me  to 

;her  crim- 

and  that, 

:here  was 

nuendoes 

fere  with 
of  law." 

id:     "In 

>  jury  are 

le.    This 

ing  been 

time  for 

linal  na- 

nd  then 


leave  it  to  the  jury  to  say  whether  the  facts  necessary  to  con- 
stitute that  offense  are  proved  to  their  satisfaction,  and  that 
whether  the  libel  is  the  subject  of  a  criminal  prosecution  or  a 
civil  action." 

The  old  common-law  oath  of  jurors  would  seem  to  indicate 
that  they  were  not  the  judges  of  the  law.  By  it  they  are 
sworn  "  a  true  verdict  to  give  according  to  the  evidence."  4 
Bl.  Comm.  p.  355.  This  must  mean  that  they  are  to  decide 
the  facts  according  to  the  evidence.  If  they  may  decide  the 
law,  they  may  act  as  to  that  without  the  obligation  of  an  oath. 
The  law  is  not  given  in  evidence.  It  has  been  urged  that,  be- 
cause jurors  have  the-  power,  therefore  they  have  the  legal 
right,  to  ignore  the  law,  as  laid  down  by  the  court,  and  to  de- 
cide it  according  to  their  own  notion.  This  argument  proves 
too  much,  and  is  based  upon  a  confusion  of  the  idea  of  physical 
power  to  do  a  thing,  as  distinguished  from  the  moral  and  legal 
right  to  do  it.  A  judge  has  the  power  to  render  a  judgment 
which  is  corrupt  and  contrary  to  law  but  when  he  does  so  he 
goes  beyond  his  legal  right  as  judge,  and  violates  his  oath  of 
office.  No  one  claims  that  in  civil  casec  jurors  are  judges  of 
the  law,  yet  they  have  the  same  power  in  an  action  of  trespass 
or  trover  to  return  a  verdict  contrary  to  the  instructions  of 
the  court  as  to  the  law  that  they  have  in  a  criminal  case.  If 
the  physical  power  to  do  a  thing  makes  them  judges  of  the  law 
in  the  one  case,  it  is  not  apparent  why  it  should  not  have  the 
same  effect  in  the  other,  and  therefore  make  them  paramount 
judges  of  the  law  in  all  cases,  civil  and  criminal.  If,  at  the 
common  law,  jurors  are  the  paramount  judges  of  the  law  in 
criminal  cases,  the  respondent  must  have  the  legal  right  to 
have  such  supreme  judges  pass  upon  the  law  of  his  case  when 
he  puts  himself  upon  his  country  for  trial.  By  the  common 
law,  however,  jurors  in  such  a  case  may,  if  they  so  elect,  return 
a  special  verdict  setting  forth  the  facts  which  they  find,  and 
leave  it  for  the  court  to  pass  upon  and  apply  the  law.  4  Bl. 
Comm.  p.  36 1.  Notwithstanding  the  doctrine  laid  down  in  State 
V.  Croteau,  supra,  we  have  seen  that,  under  the  decisions  of 
this  court  cited,  it  is  not  error  for  the  trial  court  to  attempt  to 
persuade  jurors  not  to  act  as  judges  of  the  law,  thus  without 
doubt  in  a  great  majority  of  cases  actually  depriving  the 
accused  of  his  right  to  have  them  pass  upon  the  law  as  well  as 
the  facts  of  his  case,  if  they  are  the  paramount  judges  of  the 


i;; , 


W 


554 


AMERICAN  CRIMINAL  REPORTS. 


law.  Again,  if  jurors  are  the  judges  of  the  law — if  in  tlicm 
are  vested  the  right  and  sujirenie  power  by  the  law  to  decluro 
what  the  law  is  which  shall  govern  and  decide  each  case  as  it 
comes  before  them — it  seems  inconsistent  and  absurd  to  hold, 
as  do  the  courts  in  this  and  other  states,  that  the  court  may 
direct  a  verdict  of  acquittal  when  in  its  opinion  the  evidence 
will  not  justify  a  conviction,  and  may  also  set  aside  a  verdict 
convicting  the  accused  if  it  thinks  the  verdict  is  contrary  to 
law  or  not  warranted  by  the  evidence.  As  before  suggested, 
this  practice  in  effect  makes  jurors  paramount  judges  of  the 
law  only  in  case  they  acquit,  as  in  that  event  the  court  can  not 
set  aside  tlie  verdict,  nor  can  the  accused  be  again  put  upon 
trial  for  the  same  offense.  But  the  doctrine  of  lutrefois  act/Klt 
is  in  no  wise  dependent  on  jurors  being  judge?  of  the  law.  A 
verdict  of  acquittal  in  a  criminal  case  is  final,  "  not  because  the 
jury  have  a  right  finally  to  decide  the  law,  but  because  of  the 
rule  ne  his  idem,  familiar  to  all  jurisprudence,  that  no  man  is 
to  be  tried  for  an  offense  of  which  he  has  been  acquitted."  1 
Orim.  Law  Mag.  54. 

In  the  opinion  of  the  court  in  State  v.  Croteav,  sujyra,  con- 
siderable stress  is  laid  upon  the  idea  that,  in  the  past,  jurors 
have  been  the  palladium  of  the  liberties  of  the  subject  against 
the  encroachments  of  the  government,  and  the  usurpation  of 
unjust  judges  in  its  behalf,  and  that  the  mutation  of  time  may 
bring  in  a  day  when  our  judges  will  become  corrupt  and  the 
tools  of  tyrann}'  in  high  places,  and  that  then  the  rule  that 
jurors  are  judges  of  the  law  will  prove  to  be  the  corsor'aior 
of  the  rights  of  individuals.  When  examined  in  the  !:  ■  .? 
facts,  this  argument  is  without  weight.  This  is  a  "/.».~  -..u 
ment  of  the  people,  by  the  people,  for  the  people."  i  this 
state  the  making  of  constitutions  and  the  enacting  of  laws  is 
vested  in  the  people.  However  elected  or  appointed,  our 
judges  are  the  servants  of  the  people  to  administer  justice  ac- 
cording to  law  and  equity,  and  it  would  be  sufficient  to  say 
that  they  have  never  been  recremt  to  the  trust  imposed  upon 
them.  Whenever  a  rule  of  law,  as  administered  by  the  courts, 
becomes  obnoxious  to  the  people,  or  they  think  it  detrimental 
to  their  best  interests,  they  have  only  to  exercise  their  power 
to  abolish  or  modify  it,  to  rid  themselves  of  it.  In  times  of 
public  commotion  or  excitement,  a  respondent  charged  with 
the  commission  of  crime  often  has  just  cause  to  fear  popular 


STATE  V.  BURPEE. 


655 


passion  and  prejudice,  which  may  be  represented  more  or  less 
by  tiie  jury,  more  than  anything  else  in  the  case  against  him, 
and  it  is  then  that  he  has  occasion  to  rely  upon  the  court  to 
protect  him  from  the  voxpopuU,  and  to  see  that  he  is  tried 
and  judged  according  to  the  law,  and  not  by  the  passions  or 
ciiprice  of  a  jury.    The  theory  that  jurors  have  always  proved 
a  i)rotcction  to  the  individual  against  the  corruption  and  oi> 
])rossion  of  those  of  influence  and  of  those  in  power  is  not 
sustained  by  the  facts  of  history.     In  Queen  Elizabeth's  time, 
tiial  by  jury  was  not  much  in  favor  among  the  middle  and 
lower  classes,  on  account  of  the  corruption  of  juries,  and 
their  subserviency  to  the  upper  classes.    1   Brodie,  Const. 
Hist.  Eng.  227.    Says  Wharton  (1  Crim,  Law  Mag.  54) :  "  The 
despotism  of  which  William  Penn  complained  was  exercised, 
not  through  courts,  but  through  juries.     *    *    *    In  England, 
not  only  during  the  Stuarts,  but  for  many  years  after  the 
Stuart  dynasty  ceased,  it  was  the  rule  that  after  a  conviction 
by  a  jury  there  could  be  no  new  trial.     Convictions  were  thus 
assimilated  to  acquittals.    A  verdict,  when  rendered  in  a  crim- 
inal case,  could  not  be  disturbed.    *    *    *    But  who  were 
the  juries  ?    *    *    *    They  were  virtually  the  appointees  of 
the  crown.    *  The  juries,'  says  Macauley,  4  Hist.  Eng.  135, 
(Harper's  Ed.),  '  carefully  selected  by  sheriffs  whom  the  crown 
had  named,  were  men  animated  by  the  fiercest  party  spirit — 
men  who  had  as  little  tenderness  for  an  exclusionist  or  a  dis- 
senter as  for  a  mad  dog.'    Quakers,  of  course,  being  among  the 
maddest  of  mad  dogs,  were  convicted,  under  such  a  system,  on 
the  most  frivolous  evidence  and  in  defiance  of  law,  and,  when 
appeal  was  made  to  the  court,  the  answer  was, '  Verdicts  in 
criminal  cases  are  final.'    It  was  to  this  rule  that  many  in- 
famous convictions  in  the  reign  of  (/harles  II.  and  James  II.  are 
to  be  charged."    The  doctrine  that  jurors  are  judges  of  the  law 
is  contrary  to  a  great  preponderance  of  authority  in  this 
country.     Among  the  more  important  authorities  against  it 
are  :     Proff.  Jury,  §  373  ei  seq.;  Cooley  Const.  Lim.  (4th  Ed.) 
307-402;  2  Thomp.  Trials,  §  2132  et  seq.;  3  Greenl.  Ev.  (8th 
Ed.)  §  1 79;  Walk.  Amer.  Law,  (5th  Ed.)  69G;  3  Whart.  Crim. 
Law  (Oth  Ed.)  §  3094  et  seq.;  1  Benn.  &  Heard,  Crim.  Cas. 
(2d  Ed.)  428,  note  to  State  v.  Croteau;  State  v.  Wright,  53  Me. 
328;  Pierce  v.  State,  13  N.  II.  53G;  Lord  v.  State,  16  N.  H.  325; 


Com.  V.  Porter,  10  Mete.  (Mass.)  263;  Cojn. 


V.  Anthes,  5 


Gray 


m 

U 

■■■■  (•'' 

1 

'^1 

li 

rw- 


■;•[ 


556 


AMERICAN  CRIMINAL  REPORTS. 


185;   Com.  v.  Bock,  10  Gray  4;   Com.  v.  Anthes,  12  Gray  20; 
Com.  V.  Thorniley,  6  Allen  448;  Dorr's  Trial,  121;  People  v.  J* aw, 
2  Karb.  566;  Carpenter  v.  People,  8  Barb.  610;  Safford  v.  People, 
1  Parker  Grim.  R.  474;  Duffy  v.  People,  26  N.  Y.  588;  Pen- 
sylvania  v.  Bell,  Add.  156;  Nicholson  v.  Com.,  96  Pa.  St.  5<i3; 
State  V.  Jeandell,  5  liar.  (Del.)  475;  Davenport  v.  Com.,  1  Leigh 
588;  Com.  v.  Garth,  3  Leigh  761;  Dejarnette  v.  Com.,  75  Va.  SOT; 
State  V.  Peace,  1  Jones  (N.  C.)  251;  State  v.  Drawdy,  14  Rich. 
(8.  C.)  87;  State  v.  Syphrett,  27  8.  C.  29;  2  8.  E.  Rep.  Q2i;  13 
Amer.  St.  Rop.  616,  and  note;  Bidenhour  v.  State,  75  Ga.  bSti; 
Danforth  v.  State,  Id.  614;  Pierson  v.  State,  12  Ala.  153;  Batfe 
V.  State,  18  Ala.  119;  Washington  v.  State,  63  Ala.  135;  WiU- 
iams  V.  State,  32  Miss.  389;  Jf^ela  v.  State,  2  Tex.  280;  McGowan 
V.  State,  9  Yerg.  184;  Mo7itee  v.  Com.,  3  J.  J.  Marsh.  149;  Com. 
V.  Van  Tuyl,  1  Mete.  (Ky.)  1;  Pleasant  v.  State,  13  Ark.  36<»; 
Sweney  v.  State,  35  Ark.  585;  Montgomery  v.  State,  11  Ohio  424; 
Bobbins  v.  State,  8  Ohio  St.  131;  Adams  v.  State,  29  Ohio  St. 
412;  Hamilton  v.  People,  29  Mich.  173;  Hardy  v.  State,  7  Mo, 
607;  State  v.  Jaeger,  66  Mo.  173;  State  v.  Ilosmer,  85  Mo.  553; 
Parish  V.  State,  14  Neb.  60;  People  v.  Anderson,  44  Cal.  65; 
People  V.  Ivey,  49  Cal.  56;  State  v.  Ford,  37  La.  Ann.  443,  465; 
State  V.  Hannibal,  Id.  619;  State  v.  Miller,  53  Iowa  156.    In 
the  federal  courts  the  doctrine  is  denied  in  U.  S.  v.  Shive,  1 
Baldw.  612;  U.  S.  v.  Battiste,2  Suran.  243;  U.  S.  v.  FemoicTc,  4 
Cranch,  C.  C.  675;  Stettiniusv.  U.S.,  5  Cranch,  C.  C.  573;  U.  S. 
V.  Morris,  1  Curt.  C.  C.  53;  U.  S.  v.  Biley,  5  Blatchf.  204;  U.  S.  v. 
Greathouse,  4  Sawy.  457;  and  U.  S.  v.  Anthony,  11  Blatchf.  204. 
For  an  able  discussion  of  this  question,  and  for  a  vigorous 
statement  of  reasons  against  the  rule  adopted  in  State  v.  Cro- 
teau,  also  see  an  article  by  Wade,  Chief  Justice  of  Montana, 
in  3  Crim.  Law  Mag.  484,  and  a  criticism  in  1  Crim.  Law  Mag. 
51,  by  Francis  Wharton,  of  the  opinion  of  Sharswood,  C.  J., 
in  the  case  of  Kane  v.  Com.,  89  Pa.  St.  522,  which  opinion  and 
decision  are  explained  in  Nicholson  v.  Com.,  96  Pa.  St.  503. 
In  the  trial  of  a  criminal  case  in  the  United  States  circuit  court 
in  the  city  of  New  York,  Thompson,  J.,  was  requested  to  in- 
struct the  jury  that  they  were  the  judges  of  the  law  as  well  as 
of  the  fact,  which  he  refused  to  do,  in  the  terse  but  not 
ambiguous  language :    "  I  shan't;  they  ain't."    2  Whart.  Crim. 
Law,  §  3100. 
We  are  not  able  to  learn  that  this  question  has  been  before 


m 


STATE  V.  BURPEE. 


657 


the  sui>rome  court  of  the  United  States,  but  Baldwin,  Curtis, 
FieUl.  Story,  and  Thompson,  judges  of  that  court,  and  eminent 
jurists,  have  emphatically  denied  the  right  of  jurors  to  leter- 
mine  the  law  in  civil  or  criminal  cases.  Maryland,  Louisi.,i.a, 
Illinois,  Indiana  and  Georgia  have  an  express  constitutional 
provision  by  which  jurors  are  declared  to  be  judges  of  the  law 
ill  criminal  cases;  yet  in  some  of  these  states  the  supreme 
court  has  held  that  it  is  not  error  to  charge  the  jury  that  it  is 
their  duty  to  take  the  law  from  the  court.  See  Louisiana  and 
Georgia  cases  cited  supra;  1  Crim.  Law  Mag.  52.  Under  a 
provision  of  the  constitution  of  Maryland,  the  language  of 
which  was,  "  In  the  trial  of  all  criminal  cases  the  jury  shall  be 
judges  of  the  law  as  well  as  fact,"  it  was  held  in  Franklin  v. 
State,  12  Md.  236,  that  this  language  did  not  authorize  the  jury 
to  judge  of  the  constitutionality  of  an  act  of  the  assembly,  and 
that  counsel  for  the  respondent  had  no  right  to  argue  that 
question  to  them.  It  is  difficult  to  see  the  logic  of  this  limita- 
tion, or  to  understand  why  jurors  may  not  pass  upon  the 
fundamental  law  embotlied  in  the  constitution  and  on  the 
statute  and  common  law,  as  occasion  may  require,  if  they  are 
the  paramount  judges  of  the  law.  By  statute  in  Connecticut 
jurors  are  made  judges  of  the  law  in  criminal  cases.  State  v. 
Buckley,  40  Conn.  247.  By  an  examination  of  the  authorities 
above  cited,  it  appears  that  every  case  cited  from  the  courts 
of  this  country  by  the  court  in  State  v.  Croteau,  not  turning 
upon  a  statutory  or  constitutional  provision,  has  since  been, 
expressly  or  in  effect,  overruled  by  those  same  courts.  While 
a  jury  are  out  deliberating  upon  a  criminal  case  it  is  reversible 
error  for  the  court  to  furnish  them  with  the  statutes  of  the 
state,  that  they  may  read  certain  sections  designated  by  the 
court,  touching  the  case  under  consideration.  In  such  a  case 
the  rule  is  the  same  if  the  jury  attempt  to  enlighten  them- 
selves as  to  the  law  by  reading  the  statutes  or  other  law  books, 
whether  they  do  so  with  or  without  the  knowledge  or  consent 
of  the  court.  State  v.  Patterson,  45  Vt.  316;  State  v.  Smith, 
6  R.  I.  33. 

The  doctrine  that  jurors  are  judges  of  the  law  in  criminal 
cases  is  repugnant  to  article  4  and  article  10  of  chapter  1  of  the 
constitution  of  Vermont,  which  guarantee  to  every  person 
within  this  state  "a  certain  remedy"  for  all  wrongs,  conform- 
ably to  the  laws,  and  that  he  shall  not  be  "  deprived  of  his 


I  ¥'. 


''-■■m 


It 


■'8  I 


■»i  ; 


i«i  \ 


lji;i. ., 


■m 


m 


558 


AMERICAN  CRDIINAL  REPORTS. 


liberty,  except  by  the  laws  of  the  land."  In  U.  S.  v.  Baftixh'^ 
supra,  Mr.  Justice  Story  said  :  "  If  the  jury  were  at  liln'itv 
to  settle  the  law  for  themselves,  the  effect  would  bo,  not  only 
that  the  law  itself  would  be  most  uncertain,  from  the  difTor- 
ent  views  which  juries  might  take  of  it,  but  in  case  of  (M-ror 
there  would  be  no  remedy  or  redress  of  the  injured  party,  for 
the  court  would  not  have  any  right  to  review  the  law  as  it 
had  been  settled  by  the  jury.  Indeed,  it  would  be  almost  im- 
practicable to  ascertain  what  the  law,  as  settled  by  the  jury, 
actually  was.  On  the  contrary,  if  the  court  should  err  in  lay- 
ing down  the  law  to  the  jury,  there  is  an  adequate  remedy 
for  the  injured  party,  by  a  motion  for  a  new  trial  or  a  writ  of 
error,  as  the  nature  of  the  jurisdiction  of  the  parti(;ular  com  t 
may  require.  Every  person  accused  as  a  criminal  has  a  right 
to  be  tried  according  to  the  law  of  the  land — the  fixed  law  of 
the  land — and  not  by  the  law  as  a  jury  may  understand  it,  or 
choose  from  wantonness  or  ignorance  or  accidental  mistako, 
to  interpret  it."  "With  great  force  and  clearness,  Campbell,  J,, 
in  IlamiWm,  v.  People,  29  Mich.  173,  on  this  subject  says :  "  It 
is  necessary  for  public  and  private  safety  that  the  law  shall  be 
known  and  certain,  and  shall  not  depend  on  each  jury  that 
tries  a  cause;  and  the  interpretation  of  the  law  can  have  no  per- 
manency and  uniformity,  and  can  not  become  generally  known 
except  through  the  fiction  of  the  courts.  *  *  *  If  the 
court  is  to  have  no  voice  in  laying  down  these  rules,  it  is  ob- 
vious that  there  can  be  no  security  whatever,  either  that  the 
innocent  may  not  be  condemned,  or  that  society  will  have  any 
defense  against  the  guilty.  A  jury  may  disregard  a  statute 
just  as  freely  as  any  other  rule.  A  fair  trial  in  time  of  excite- 
ment would  be  almost  impossible.  All  the  mischief  of  ex  post 
facto  laws  would  be  done  by  tribunals  and  authorities  wholly 
irresponsible,  and  there  would  be  no  method  of  enforcing 
with  effect  many  of  our  most  important  and  legal  safeguards 
against  injustice.  Parties  charged  with  crime  need  the  pro- 
tection of  the  laws  against  unjust  convictions  quite  as  often  as 
the  public  needs  it  against  groundless  acquittals.  Neither  can 
be  safe  without  having  the  rules  of  law  defined  and  preserved, 
and  beyond  the  mere  discretion  of  any  one."  Chief  Justice 
Wade  strikingly  sums  up  this  phase  of  this  question.  He 
says :  "  The  end  of  all  good  governments  is  the  honest  and 
uniform   administration  of   good    laws.    Safety  comes  to  a 


STATE  V.  BURPEE. 


550 


pe()i)lo,  and  life,  liberty,  and  property  are  secure,  when  no  one 
can  be  deprived  thereof  except  by 'due  process  of  law,'  and 
when,  in  the  adjudication  of  public  and  private  ri^^hts,  judi- 
cial authority  speaks  the  pure  voice  of  the  law — 'the  hiw  of 
the  land.'  The  doctrine  that  jui^rs  are  judges  of  the  law  in 
criminal  cases  abolishes  the  sacred '  law  of  the  land,'  wliich, 
since  the  days  of  King  John  and  Magna  Charta,  has  been  the 
birthright  of  all  English-speaking  people,  and  tends  to  the 
exercise  of  irresponsible  arbitrary  power.  They  are  judges 
whose  decision  can  not  be  reviewed.  Their  decrees  are  irrevo- 
cable and  final.  If  they  set  aside  a  constitution  or  a  statute, 
tiieir  act  can  not  bo  questioned.  If  in  the  jury  room  they  leg- 
islate and  enact  a  law  for  the  case  in  hand,  it  never  sees  the 
light  of  day;  it  is  a  mystery  and  a  myth;  no  one  can  lay  his 
hands  upon  it;  no  one  can  construe  or  interpret  it;  it  affords 
no  guide  for  the  future,  for  it  vanishes  into  nonentity  the  mo- 
ment the  verdict  is  returned,  and  the  verdict  makes  no  sign; 
the  decision  and  the  judges  quickly  disappear. 

'  The  showman  and  the  show, 
Themselves  but  shadows,  into  shadows  go.'" 

.3  Crim.  Law  Mag.  497. 

Wharton  says  :  "  We  must  hold,  to  enable  us  to  avoid  the 
inconsistency,  that,  subject  to  the  qualification  that  all  acquit- 
tals are  final,  the  law  in  criminal  cases  is  to  be  determined  by 
the  court.  In  this  way,  we  have  our  liberties  and  rights  deter- 
mined, not  by  an  irresponsible,  but  by  a  responsible  tribunal: 
not  by  a  tribunal  ignorant  of  the  law,  but  by  a  tribunal  trained 
to  and  disciplined  by  the  law;  not  by  an  irreversible  tribunal, 
but  by  a  reversible  tribunal;  not  by  a  tribunal  which  makes 
its  own  law,  but  by  a  tribunal  that  obeys  the  law  as  made.  In 
this  way  we  maintain  two  fundamental  maxims.  The  first  is 
that,  while  to  facts  answer  juries,  to  the  law  answers  the  court. 
The  second,  which  is  still  more  important  is.  Nullum  crimen 
nulla  pmna,  sine  lege.  Unless  there  be  a  violation  of  law  pre- 
announced,  and  this  by  a  constant  and  responsible  tribunal, 
there  is  no  crime,  and  can  be  no  punishment.  1  Crim.  Law 
Mag.  57.  In  Com.  v.  Anthes,  5  Gray,  195,  that  able  judge 
and  profound  jurist.  Chief  Justice  Shaw,  said :  "  It  is  a  funda- 
mental principle  of  the  common  law  that  the  adjudication  of 
the  highest  tribunal  or  court  of  last  resort,  in  matters  of  law, 
shall  stand  as  rules  of  law  in  all  similar  cases;  which  makes  it 


J 

.*1 

iH 

1 

n 


>i 


500 


AMERICAN  CRIMINAL  REPORTS. 


necessary,  in  every  system  of  jurisprudence  following  the  com- 
mon law,  that  all  decisions  in  matters  of  law  made  by  sui)()r- 
dinate  courts  and  judges  shall  in  some  mode  be  re-examinable, 
and  in  some  form  be  brought  before  the  court  of  last  resort,  to 
one  tribunal,  one  judicial  mind  and  judgment,  whether  vested 
in  one  or  many  persons,  in  order  that  the  rules  of  law  may  be 
uniform  throughout  the  whole  extent  of  territory  subject  to 
the  same  government,  that  all  the  inhabitants  alike  owing 
allegiance  shall  stand  equal  before  the  law,  alike  entitled  to 
its  protection  and  benefits,  and  alike  amenable  and  punish- 
able for  its  violation. 

This  principle  is  recognized  in  our  system  of  jurisprudence, 
and  is  embodied  in  R.  L.  §§  1690,  1700,  which  provide  that, 
after  a  verdict  of  guilty  in  a  criminal  case,  all  questions  of 
law  arising  therein,  decided  by  the  county  court,  shall  upon 
motion  of  the  respondent  be  allowed  and  placed  upon  the 
record,  and  that  the  same  shall  thereupon  pass  to  the  supreme 
court  for  a  final  decision.  The  doctrine  that  jurors  are  tlie 
paramount  judges  of  the  law  is  repugnant  to  these  provisions 
of  our  statute  law.  Juries  are  usually  composed  of  honest 
men,  who  desire  to  perform  their  duties  to  the  best  of  their 
abilities,  but  they  are  usually  unlearned  in  the  law.  For  the 
sake  of.illustration,  we  will  assume  that  a  criminal  case  is  on 
trial,  in  which  the  jury  think  the  court  has  erred  in  its  state- 
ment of  the  law,  and  they  set  about  to  correct  it.  The  case  is 
submitted  to  them.  What  follows?  Under  our  procedure 
they  are  put  in  charge  of  an  officer,  and  are  not  allowed  to 
separate  until  they  have  agreed  upon  a  verdict  and  delivered 
it  in  court,  or  have  been  discharged  from  a  further  con- 
sideration of  the  case,  nor  are  they  allowed  to  speak  to  any 
one  about  the  case,  but  to  their  fellow  jurors,  nor  is  any  one 
jiermitted  to  speak  to  them  about  it.  Debarred  from  access 
to  law  books  of  authority,  from  which  they  might  hope  to 
obtain  some  light  to  aid  them,  not  even  permittetl  to  read  the 
statutes,  which  perchance  they  are  attempting  to  construe,  un- 
aided by  precedent,  and  utterly  ignorant  of  the  law  of  the 
case,  they  are.  left  to  evolve  it  from  their  "  inner  conscious- 
ness." When  thus  evolved  and  applied  by  them  to  the  case, 
their  decision  as  to  the  law  can  not  be  placed  upon  the  record 
pursuant  to  the  requirements  of  the  statute,  for  it  can  never 
be  known,  except  by  inference  or  conjecture,  what  they  held 


STATE  V.  BURPEE. 


501 


tli(!  law  to  be.  Article  0  of  the  constitution  of  the  ITnittnl 
States  makes  it,  and  all  hiws  and  treaties  njade  in  ])ur8Uiince 
tlicreof,  the  supreme  law  of  the  land,  and  declares  that  jud;^es 
in  every  state  shall  Ikj  bound  thereby,  notwithstanding  any- 
tiiing  in  the  constitution  or  laws  of  any  state  to  the  contrary. 
The  judges  of  the  supreme  court  of  the  United  States  are  the 
final  arbiters  to  adjudicate  and  determine  all  questions  of  law 
arising  under  this  supreme  law  of  the  land.  1  Story  Const. 
(Cool.  Ed.)  §  375  et  seq.  In  State  v.  Wrhjht,  supra,  the  court 
well  said :  "  To  allow  juries  to  revise,  and  if  they  think 
proper,  overrule,  those  adjudications,  would  deprive  them  of 
their  final  and  authoritative  character,  and  thus  destroy  the 
constitutional  functions  of  the  court."  On  this  ground  the 
court  in  that  case,  and  in  Pierce  v.  /State,  stipra,  held  that  the 
doctrine  that  jurors  are  the  paramount  judges  of  the  law  is  in 
contravention  of  the  constitution  of  tlie  United  States,  and 
tlierefore  unconstitutional.  We  think  this  view  is  sound. 
Those  courts  support  it  by  reasoning  which,  so  far  as  we  are 
able  to  find,  remains  unanswered. 

We  are  thus  led  to  the  conclusion  that  the  doctrine  that 
jurors  are  the  judges  of  the  law  in  criminal  cases  is  untenable; 
that  it  is  contrary  to  the  fundamental  maxims  of  the  common 
law  from  which  it  is  claimed  to  take  its  origin;  contrary  to 
the  uniform  practice  and  decisions  of  the  courts  of  Great 
IJritain,  where  our  jury  system  had  its  beginning,  and  where 
it  matured;  contrary  to  the  great  weight  of  authority  in 
this  country;  contrary  to  the  spirit  and  meaning  of  the 
constitution  of  the  United  States;  repugnant  to  the  con- 
stitution of  this  state;  rei)ugnant  to  our  statute  relative  to 
the  reservation  of  questions  of  law  in  criminal  cases,  and 
passing  the  same  to  the  supreme  court  for  final  decision; 
and  as  was  said  by  Walton,  J.,  in  State  v,  Wright,  supra,  "con- 
trary to  reason  and  fitness,  in  withdrawing  the  interpretation 
of  the  laws  from  those  who  make  it  the  business  and  the 
study  of  their  lives  to  understand  them,  and  committing  it  to 
a  class  of  men  who,  being  drawn  from  non-professional  life 
for  occasional  and  temporary  service  only,  possess  no  such 
qualification,  and  whose  decision  would  be  certain  to  be  con- 
flicting in  all  doubtful  cases,  and  would  therefore  lead  to  end- 
less confusion  and  perpetual  uncertainty."    It  is  the  province 


'  'II! 


662 


AMERICAN  CRIMINAL  REPORTS. 


and  duty  of  the  court  in  the  trial  of  a  criminal  cause  to  decide 
all  questions  of  law  which  arise,  and  if  there  is  a  verdict  of 
guilty,  to  place  them  upon  the  record,  and  pass  them  to  the 
su])reme  court  for  final  decision,  on  motion  of  the  respondent. 
If  the  question  of  law  touches  matters  atfecting  the  course  of 
the  trial,  such  as  the  competency  of  witnesses,  the  admissibil- 
ity of  evidence,  and  the  like,  the  jury  receive  no  direction  con- 
cerning it.  It  affects  the  materials  out  of  which  they  are  to 
form  their  verdict,  but  they  have  no  more  to  do  with  it  tlian 
they  would  have  had  if  it  had  arisen  in  some  other  trial.  The 
presiding  judge  is  to  instruct  the  jury  as  to  the  law  and  its 
ultimate  application  to  the  facts  of  the  case,  if  proved  to  their 
satisfaction,  beyond  a  reasonable  doubt,  by  the  evidence  sub- 
mitted to  them,  and  they  are  legally  and  morally  bound  to 
consider  that  they  are  correctly  told  the  law  b}'  the  ju(li>e. 
That  law  they  are  to  apply  to  the  facts  which  they  find,  and 
from  both  frame  their  verdict  of  guilty  or  not  guiltv.  Thus  trial 
by  jur}'  is  seen  to  be  as  so  aptly  described  by  Chief  J  ustice  Shaw 
Avhen  he  said  (5  Gray,  lOS):  "In  my  judgment  the  true 
glory  and  excellence  of  the  trial  by  jury  is  this:  That 
the  power  of  deciding  fact  and  law  is  wisely  divided;  that 
the  authority  to  decide  questions  of  law  is  placed  in  a  body 
well  qualified,  by  a  suitable  course  of  training,  to  decide  all 
questions  of  law,  and  another  body,  well  qualifieil  for  tiie 
duty,  is  charged  with  deciding  all  questions  of  fact  definitely; 
and  while  each,  within  its  own  sphere,  performs  the  duty  in- 
trusted to  it,  such  a  trial  affords  the  best  possible  security  for 
a  safe  administration  of  justice,  and  tlie  security  of  ])ublic 
and  private  rights."  We  therefore  have  no  hesitation  in  hold- 
ing that  it  was  not  error  for  the  court  below  to  refuse  the 
instruction  requested;  although,  in  so  doing,  we  on  this  ques- 
tion overrule  State  v.  Croteau,  supra,  and  the  cases  in  this 
state  which  have  followed  it. 

For  the  error  indicated,  the  exceptions  are  sustained,  judg- 
ment reversed,  verdict  set  aside,  and  cause  remanded  for  trial. 


e  to  (locide 
I  verdict  of 
lem  to  the 
•espoTulcnt. 
e  course  of 
adniissil)il- 
•ection  con- 
tlio}'  are  to 
■'itli  it  tlian 
trial.     The 
aw  and  its 
ed  to  their 
idence  siib- 
V  bound  to 
the  ju(l<>e. 
y  find,  and 
Tlius  trial 
istice  8ha\v 
it  the  true 
his:     That 
killed;  tiiat 
I  in  a  body 
>  decide  all 
ed  for  tiie 
:  definitely; 
he  duty  in- 
ecurity  for 
y  of  jmblic 
ion  in  hold- 
refuse  the 
n  this  ques- 
3es  in  this 

ined,  judg- 
id  for  trial. 


STATE  V.  CAS8IDY.  5(53 


State  v.  Cassidy. 
(4  So.  Dak.  58.) 

Rescde:    Of  property  held  by  officer  under  tvrit 

1.  On  the  trial  of  a  party  charged  with  unlawfully  and  wilfully  taking  per- 

sonal property  from  the  custody  and  charge  of  an  officer,  in  violation 
of  section  6336,  Conip.  Laws,  proof  of  the  rendition  of  a  legal  judg- 
ment is  not  required.  It  is  sufficient  to  prove  that  the  process,  under 
which  the  officer  claims  to  have  the  property  in  charge,  is  valid  on  its 
face. 

2.  An  execution  which  appears  upon  its  face  to  have  been  issued  by  the 

clerk  of  the  circuit  court  of  "  Hamlin  county.  State  of  South  Dakota," 
since  the  admission  of  South  Dakota  as  a  state,  will  not  be  held  void, 
though  issued  in  the  name  of  the  "  Territory  of  Dakota."  Such  irregu- 
larity is  held  amendable  and  the  execution  properly  admitted  in  evi- 
dence in  the  trial  of  this  case. 

3.  When  an  officer  in  making  a  levy  under  an  execution,  upon  a  large 

quantity  of  giviin  in  a  granary,  forces  open  the  doors  of  the  granary, 
levels  off  and  estimates  the  quantitj'  of  giviin,  and  serves  notice  of  such 
levy  upon  the  party  having  the  charge  and  control  of  the  granary  and 
property,  he  thereby  acquires  tlie  custody  and  charge  of  the  grain,  as 
against  one  who  has  actual  notice  of  such  levy,  and  who  subsequently 
remov&s  the  same  from  the  granary,  and  converts  it  to  his  own  use. 

4.  In  this  state  the  owner  of  personal  property  levied  on  by  an  officer  hold- 

ing an  execution  issued  against  anotlier  party,  can  not  rightfully  take 
it  from  the  custody  and  charge  of  such  officer,  even  though  he  may  do 
so  without  a  uieach  of  the  peace.  He  must  assert  his  title  to  such 
property  by  legal  proceedings. 

Error  to  Circuit.  Court,  Deuel  County;  Hon.  J.  0.  Andrews, 
Judge. 

Defendant  was  convicted  of  unlawfully  taking  personal 
projierty  from  the  custody  of  an  officer,  and  brings  error. 
Affirmed. 

J.  P.  Cheever.  A.  R.  Allen,  and  Van  Buskirk  cfe  Weeden, 
for  plaintiff  in  error. 

Rohi't't  Dolhird,  Attorney-General,  nnd  George  11.  Marquis^ 
for  defendant  in  error. 

Carson,  J.  The  plaintiff  in  error  was  indicted  by  the  grand 
jury  of  Deuel  county  for  unlawfully  and  wilfully  taking  1,150 
bushels  of  oats  and  2('0  bushels  of  barle}'  from  the  custody  of 
the  sheriff  of  Deuel  county,  alleged  to  have  been  levied  upon 


5C4 


AMERICAN  CRIMINAL  REPORTS. 


and  in  the  custody  of  said  sheriff,  under  and  by  virtue  of  an 
execution  in  his  hands,  in  favor  of  the  Quebec  Bank,  against 
John  Carroll  and  others.  A  trial  was  had,  resulting  in  a  ver- 
dict against  the  defendant,  upon  which  he  was  sentenced  to 
pay  a  line,  and  he  now  brings  the  case  to  this  court  for  review- 
on  writ  of  error. 

The  indictment  was  found  under  section  H330,  Comp.  Laws, 
Avhich  reads  as  follows :  "  Every  person  who  wilfully  injures 
or  destroys,  takes  or  attempts  to  take,  or  assists  any  other 
])erson  in  taking  or  attempting  to  take,  from  the  custody  of 
any  officer  or  person,  any  personal  property,  which  such  otticer 
or  person  has  in  charge  under  any  process  of  law,  is  guilty  of 
a  misdemeanor." 

The  questions  raised  by  the  assignment  of  errors  for  our 
determination,  may  be  stated  as  follows :  (1)  Was  the  certi- 
tie<l  transcript  of  the  docket  entry  of  the  judgment  from  the 
clerk's  office  of  Hamlin  county,  tiled  and  docketed  in  the  office 
of  the  clerk  of  the  court  in  Deuel  county,  properly  admitted 
in  evidence  ?  (2)  Was  the  execution  in  this  case  properly  ad- 
mitted in  evidence  ?  (3)  Were  the  acts  of  the  sheriff,  in  mak- 
ing the  levy,  such  as  to  constitute  a  valid  levy,  as  against  tlie 
plaintiff  in  error?  (-t)  Has  a  person  a  legal  right  to  take 
peaceable  possession  of  his  own  property,  which  is  in  custoily 
of  an  officer,  under  process  of  law  issued  against  another 
party  ? 

1.  On  the  trial,  the  state's  attorney  gave  in  evidence  a  certi- 
fied transcript  of  the  judgment  docket  in  the  case  of  Quebec 
Bank  v.  John  Carroll  and  ot/iers,  from  the  office  of  the  clerk  of 
courts  of  Ilamlin  county,  and  filed  and  docketed  in  the  office  of 
the  clerk  of  courts  of  Deuel  county.  This  was  objected  to,  but 
upon  what  grounds  is  not  stated  in  the  abstmct.  If  it  was 
necessary  to  ])rove  the  existence  of  a  legal  judgment  in  the  case, 
Ave  think  the  transcript  of  the  judgment  docket  was  clearly  in- 
sufficient to  establish  that  fact.  But  we  are  of  the  opinion 
that  the  proof  of  a  valid  judgment  was  not  necessary.  It 
was  essential,  however,  to  prove  that  the  sheriff  of  Deuel 
county  levied  upon,  and  had  in  his  charge  and  custody,  the 
property  alleged  to  have  been  taken  by  the  plaintiff  in  error, 
under  process,  valid  upon  its  face.  Possibly,  it  was  not  only 
necessary  to  offer  in  evidence  the  execution,  but  to  prove  also 
that  a  transcript  of  the  judgment  docket  had  been  filed  in  the 


STATE  V.  CASSIDY. 


5C5 


irtue  of  an 
ik,  against 
g  in  a  viT- 
ntenccd  to 
for  review 

)mp.  Laws, 

ly  injures 

any  otlier 

custody  of 

ucli  officer 

is  guilty  of 

)rs  for  our 
i  the  certi- 
\t  from  the 
n  the  office 
y  admitted 
roperly  ad- 
iff,  in  mak- 
agaiuFt  the 
It  to  take 
in  custoily 
st  another 

?nce  a  certi- 
B  of  Qiiebve 
he  clerk  of 
he  office  of 
ited  to,  hut 

If  it  was 
in  the  case, 
clearly  in- 
le  opinion 
3ssary.  It 
F  of  Deuel 
istody,  the 
f  in  error, 

not  only 
prove  also 
iled  in  the 


office  of  the  clerk  of  court  of  Deuel  county,  and  docketed  in 
that  county.  But  it  is  not  necessary  to  decide  that  question 
at  this  time.  Section  5114  Comp.  Laws,  provides  that  an  ex- 
ecution may  be  issued  to  the  sheriff  of  any  county,  where  the 
judgment  is  docketed;  and  section  5104  provides  that  a 
judgment  may  be  docketed  in  any  other  county,  upon  filing 
with  the  clerk  of  the  court  of  said  county  a  transcript  of  the 
original  docket.  If  proof  of  the  filing  of  the  transcript  was 
necessary,  the  transcript  of  the  judgment  docket  of  Ilamlin 
county  was  competent  evidence,  and  was  properly  admitted, 
as  a  link  in  the  chain  of  evidence,  to  prove  thac  the  sheriff 
had  in  his  hands  process  valid  upon  its  face,  as  the  execution 
was  issued  by  the  clerk  of  Ilamlin  county.  In  the  absence  of 
any  showing  in  the  abstract  to  the  contrary,  this  court  will 
])resume  that  it  was  offered  for  that  purpose.  There  was, 
therefore,  no  error  in  admitting  the  transcript  of  the  judg- 
ment docket  in  evidence. 

2.  The  state's  attorney  also  introduced  in  evidence  the 
execution  in  the  case  of  Quehee  Bank  v.  John  CarrM  and 
otJiers,  "  wiiich  said  execution  was  admitted  in  evidence  over 
the  objection  of  the  plaintiff  in  error."  What  the  objection  to 
its  admission  was,  does  not  appear  in  th'>  abstract.  In  the 
brief,  however,  of  the  learned  counsel  for  the  plaintiff  in  error, 
it  is  insisted  that  the  execution  appears  to  have  been  issued  in 
the  name  of  the  "  Territory  of  Dakota,"  instead  of  the  name 
of  the  '*  State  of  South  Dakota,"  and  an  examination  of  the 
al)stract  shows  such  to  be  the  fact.  The  venue  of  the  execu- 
tion, however,  is  "  State  of  South  Dakota,  Ilamlin  County — 
ss."  As  the  territory  of  Dakota,  as  such,  had  ceased  to  exist 
when  the  execution  was  issued — its  territory  being  embraced 
in  the  two  states  of  North  and  South  Dakota — we  think  the 
error  was  clearly  clerical  and  amendable,  and  did  not  render 
the  execution  void.  Bean  v.  Zoflus,  48  Wis.  371;  Ilihhard  v. 
iSmlth,  50Cal.  511. 

3.  It  is  further  contended  by  the  learned  counsel  for  the 
plaintiff  in  error  that  the  property,  at  the  time  it  was  claimed 
it  was  taken  bv  the  plaintiff"  in  error,  was  not  in  the  custody 
of  the  sheriff,  as  the  same  had  never  been  properly  levied  on 
by  the  sheriff,  or  taken  into  his  custody.  The  facts  pertain- 
ing to  this  levy  are  stated  in  the  abstract  as  follows :  "  The 
evidence  introduced  by  the  state  showing  that,  in  undertaking 


Ml 

"li 


.  \ 


■im 


M 


566 


AMERICAN  CRIMINAL  REPORTS. 


to  levy  upon  said  property  by  virtue  of  said  execution,  the  snid 
sheriif,  on  December  26,  1890,  went  to  section  twenty-nine,  in 
the  township  of  Havana,  in  said  Deuel  county,  where  said 
property  was  situated — the  same  being  grain  in  the  granary 
on  said  place;  that  he  entered  the  upper  story  of  the  granary 
by  pulling  the  staple  and  opening  the  door — the  same  havintf 
been  fastened  by  a  padlock,  leveled  off  the  grain  and  esti- 
mated the  number  of  bushels  by  computing  the  solid  contents 
of  the  grain  in  cubic  feet,  and  went  out,  replacing  the  sta])l('. 
and  leaving  the  door  fastened  with  the  lock  he  found  there; 
that  he  entered  the  lower  story  of  the  granary  by  pulling  the 
door  far  enough  out  from  the  building  at  the  bottom  to  effect 
an  entrance,  leveled  and  measured  the  grain  as  in  the  upper 
story,  went  out  as  he  entered,  leaving  the  door  fastened  as  lie 
found  it;  that  on  the  same  day  he  served  written  notice  of  the 
levy  on  the  plaintiff  in  error  herein;  that  from  the  time  of  said 
pretended  levy  until  February  20,  1891,  the  said  sheriff  did  not 
visit  the  premises  where  said  property  was  situated;  did  not 
remove  the  same,  but  left  it  in  the  granary  where  he  found  it, 
and  that  the  said  granary  and  ]>remises  were  in  the  possession 
and  control  of  the  plaintiff  in  error,  and  that  he  had  and  main- 
tained possession  of  the  keys  to  the  locks  on  the  doors  of  said 
granary;  that  the  said  proj)erty  during  said  time,  and  at  the 
time  of  the  alleged  taking  by  the  plaintiff  in  error,  was  not  in 
the  actual  charge  or  custody  of  any  person." 

The  learned  court  below  instructed  the  jury,  in  substance, 
that  the  acts  of  the  sheriff  did  constitute  sucli  a  legal  levy  and 
custody  of  the  property  as  the  law  required,  as  against  the 
plaintiff  in  error,  .and  refused  to  instruct  the  jury  as  requested 
on  the  part  of  the  plaintiff  in  error.  The  question  here  pre- 
sented is  an  important  one,  and  one  not  free  from  difficulty. 
Such  an  exercise  of  dominion  over  the  pro))erty  by  the  officer, 
under  his  process,  as  would  m.ake  him  liable  as  a  trespasser, 
but  for  the  protection  afforded  by  his  writ,  will  ordinarily  con- 
stitute a  valid  levy.  JiceJcinan  v.  Lanshuj,  3  "Wend.  450;  Green 
V.  Burke,  23  Wend.  490;  Connah  v.  Hale,  Id.  466;  Barker  v. 
Blnninger,  14  N.  Y,  270;  Richardson  v.  liardhi,  88  111.  124; 
Smith  V.  Niles,  20  Vt.  320;  Minor  v.  Ilerriford,  25  III.  344; 
Ilavcly  V.  Lowry,  30  111.  446.  The  acts  that  will  constitute  a 
sufficient  levy  on  personal  property,  depend  upon  the  nature  of 
the  property  levied  upon,    A  levy  upon  small  articles  or  parcels 


STATE  V.  CASSIDY. 


567 


^11,  tliesiiid 
ty-nine,  in 
where  said 
»e  granjuv 
le  granary 
me  haviiur 
n  and  csti- 
id  contents 
the  staple, 
'und  there; 
)ulling  the 
ni  to  effect 
I  the  U])]K'r 
ened  as  he 
>tice  of  tlie 
ime  of  said 
riff  did  not 
sd;  did  not 
le  found  it, 
possession 
I  and  main- 
►ors  of  said 
and  at  the 
rt'as  not  in 

substance. 

il  levy  and 

gainst  the 

requested 

here  pre- 

difficulty. 

the  officer, 

trespasser, 

narily  con- 

50;  Gn'cii 

Barker  v. 

8  111.  124; 

)  III.  344; 

nstitute  a 

nature  of 

or  parcels 


of  goods  would  ba  governed  by  a  somewhat  different  rule  from 
that  applicable  to  the  levy  upon  ponderous  or  bulky  articles, 
such  as  corn  in  the  ct-ib,  grain,  lumber,  etc.  Minor  v.  Herri- 
ford,,  supra;  Ilavely  v.  Zoiori/,  supra;  Davison  v.  Waldron,  31 
III.  120;  Barker  V.  Binninrjer,  14  N.  Y.  270.  In  the  quite  recent 
case  of  liic/tardson  v.  liardin,  88  111.  124,  the  supreme  court 
of  Illinois,  in  a  well  considered  case,  as  to  a  levy  upon  corn  in 
the  crib,  says :  "  The  evidence  shows,  when  the  levy  was 
made,  the  defendant  in  execution  was  at  the  crib,  getting  a 
load  of  corn.  The  execution  was  served  upon  him  and  the 
demand  made  that  he  turn  out  the  property,  which  he  refused  to 
do.  He  was  notified  that  the  levy  was  made,  and  he  must  not 
further  inteiTv-.e  with  the  corn.  When  the  constable  indorsed 
the  levy,  he  proceeded  to  nail  boards  on  the  crib  so  as  to  secure 
the  corn;  and  he  then  gave  public  notice  in  the  hearing  of 
several  persons  standing  near  the  crib,  that  he  had  levied  upon 
the  corn,  and  that  it  must  not  be  disturbed.  After  this  he 
personally  notified  appellant  that  he  had  made  the  levy  and, 
wlien  the  appellant  subsequently  took  and  converted  the  corn, 
it  Avas  with  actual  knowledge  that  the  corn  was  then  claimed 
to  be  levied  on,  and  liable  for  the  payment  of  the  amount  of 
the  execution.  The  constable,  very  clearly,  did  that  which, 
but  for  the  protection  of  his  writ,  would  have  made  him  a 
trespasser. 

"  Not  only  was  the  nailing  of  the  boards  on  the  crib  an  act 
which,  if  unauthorized,  amounted  to  a  trespass,  but  it  would 
also  seem  that  the  actual  dominion  which  he  exercised  over 
the  property,  in  prohibiting  its  use  by  the  defendant  in  execu- 
Mon  and  others,  might  be  regarded  as  constituting,  if  unauthor- 
ised, a  trespass.  Wintrin'jhamv.  Lafoy,  7  Cow.  735;  Phillips 
V.  Hall,  8  Wend.  610;  Connah  v.  Hale,  23  Wend.  466.  It 
would  undoubtedly  have  been  better  had  the  constable, 
after  making  the  levy  and  nailing  up  the  crib,  placed  a  notice 
on  the  crib  that  the  corn  was  levied  upon,  yet  this  would  have 
afforded  the  appellant  no  more  knowledge  than  he  had  that 
the  levy  was  made.  It  does  not  seem  that  there  could  have 
been  any  doubt,  from  the  facts  proved,  but  that  the  notice  of 
levy  had  sufficient  publicity  given  to  it.  At  all  events,  we  are 
of  the  opinion  appellant,  having  actual  notice  of  the  levy  when 
he  converted  the  property,  is  in  no  condition  to  complain  that 
sufficient  publicity  was  not  given  to  it."    It  will  be  noticed 


mw 


WT 


i 


,.* 


■M 


1 1 


568 


AMERICAN  CRIMINAL  REPORTS. 


that  much  importance  is  attached  to  the  fact  that  the  ]iarty 
alleged  to  have  taken  the  property  had  actual  notice  of  tlie 
levy  by  the  oificer  upon  the  property,  and  that  "  it  was  claimed 
to  be  levied  upon,  and  liable  for  the  payment  of  the  amount  of 
the  execution,"  and  that  such  party  was  "  in  no  condition  to 
complain  that  suificient  publicity  was  not  given."     It  appears 
in  the  case  at  bar  that  the  sheriff  served  written  notice  of  the 
levy  on  the  plaintiff  in  error  on  the  same  day  the  levy  was 
made,  so  that  he  had  actual  notice  of  such  levy.     Without  at 
this  time  deciding  whether  or  not  the  levy  made  by  the  sheriff, 
and  his  custody  of  the  property,  in  this  case  were  suificient  as 
against  a  subsequent  levy  by  another  officer,  or  subsecjueiit 
purchasers  in  good  faith  and  without  actual  notice  of  the  levy, 
we  are  of  the  opmion  that  the  levy  was  sufficient  as  against 
the  plaintiff  in  error,  who  had  actual  notice  of  the  same.    Tlie 
acts  of  the  sheriff  were  such,  we  think,  as  would  have  rendered 
him  liable  as  a  trespasser,  if  not  protected  by  his  writ.    Jle 
entered  the  granary  by  removing  the  staple  from  the  door, 
and  handled  some  of  the  wheat  by  leveling  it  off,  and  making 
an  estimate  of  the  number  of  bushels.     He  also  forced  open 
the  door  to  the  lower  story,  and  leveled  off  the  barley,  and 
made  an  estimate  of  the  number  of  bushels  of  the  same. 
Taking  into  consideration  the  fact  there  were  nearly  1,500  bush- 
els of  grain  levied  upon,  it  would  seem  that  this  was  all  that 
was  required  of  the  sheriff  in  making  the  levy,  in  the  first 
instance.     The  property  was  present,  and  in  view  of  the  officer, 
and  some  of  it  was  moved,  in  the  bins,  by  him. 

It  was,  therefore,  in  the  possession  of  the  sheriff,  under  his 
control  and  in  his  custody,  as  against  all  persons  having  actual 
notice  of  the  levy.  Whether  the  subsequent  acts  of  tlie  sheriff 
were  such  as  to  enable  him  to  hold  the  property  as  against  one 
who  had  no  actual  knowledge  of  the  levy,  it  is  not  necessary 
now  to  decide.  We  are  of  the  opinion,  therefore,  that  the 
court  instructed  the  jury  correctly  upon  this  question,  and  that 
he  committed  no  error  in  refusing  to  give  the  instruction  re- 
quested by  the  plaintiff  in  error. 

4.  It  is  also  contended  by  counsel  for  the  plaintiff  in  error, 
that  the  grain  levied  on  by  the  sheriff,  was  shown  to  be  the 
property  of  one  E.  K.  C.  Clarkson,  assignee  of  the  defendant 
in  the  execution,  and  that  the  plaintiff  in  error,  as  the  man- 
aging agent  of  said  Clarkson,  had  the  right  to  retake  the  pro])- 


the  ])arty 
ice  ol"  tlie 
as  claimed 
amount  of 
ndition  to 
t  ap])('ars 
tice  of  the 
levy  was 
Without  at 
the  sheriff, 
afficient  as 
iubseqiu'iit 
►f  the  levy, 
as  against 
line.     Tlie 
e  rendered 
writ.    Jle 
the  door, 
fitl  makinir 
>rced  open 
)arley,  and 
the  same. 
1,500  bush- 
as  all  that 
n  the  first 
the  officer, 

under  his 
'ing  actual 
the  sheriff 
gainst  one 
necessary 
!,  that  the 
,  and  that 
'uction  re- 


STATE  V.  CASSIDY. 


569 


erty,  as  he  did  do,  without  committing  a  breach  of  the  peace, 
and  wiat  he  was  not  required  to  take  legal  proceedings  to  as- 
sert the  right  of  his  principal  to  the  property.    The  court  below 
instructed  the  jury  upon  this  question,  that,  though  they  might 
find  that  Clarkson  owned  the  grain,  the  plaintiff  in  error  would 
not  be  justified  in  taking  it  from  the  sheriff  as  the  agent  of 
Clarkson.    The  court  also  refused  an  instruction  on  the  part 
of  the  plaintiff  in  error,  asserting  the  opposite  doctrine.     In 
New  York,  and  perhaps  some  other  states,   the  doctrine  con- 
tended for  by  the  counsel  for  the  plaintiff  in  error  has  been 
held.     Jli/att  v.   Wood,  3  Johns.  239;  Spencer  v.  McGowan,  13 
Wend.  256;  Shipman  v.    Clark,  4  Denio  446.     But  in  New 
Hampshire  {State  v.  Richardson,  38  N.  II.  208),  the  supreme 
court  of  that  state  laid  down  a  contrary  rule.     I3ut,  whatever 
the  rule  may  have  been  at  common  law,  Ave  think   the  legis- 
lature of  this  state  has,  by  the  adoption  of  the  section  under 
which  the  plaintiff  in  error  was  indicted,  settled  the  law  for 
this  state  adversely  to  the  doctrine  contended  for.     It  will  be 
noticed  that  that  section  makes  no  exceptions,  but  makes  the 
taking  of  property  from  the  custody  of  the  officer,  whether 
peaceably  or  otherwise,  a  misdemeanor.     It  was  evidentl}'  the 
intention  of  the  legislature  to  recpiire  all  parties  who  might 
claim  title  to  personal   property  levied  on  by  the  sheriff,  or 
other  proper  officer,  to  assert  such  title  by  legal  proceedings 
in  the  courts.     Ample  provision  is  made  by  law  for  the  pro- 
tection of  the  rights  of  third  parties,  where  ])roperty  may  be 
wrongfully  levied  upon  or  seized  by  an  officer  under  process. 
A  party  not  only  has  the  right  to  proceed  by  an  action  in  the 
nature  of  the  old  common  law  action  of  tresjiass,  trover  or 
replevin,  but  he  may  claim  the  property  levied  on.  and  have 
the  right  to  the  same  tried  in  a  summary  manner,  by  a  sher- 
iffs jury.    Section  5125,  Comp.  Laws.     Finding  no  error  in 
the  record,  the  judgment  of  the  circuit  court  is  affirmed.     All 
the  judges  concurring. 


'H 


f  in  error, 
to  be  the 
Jefendant 
the  man- 
the  pro)j- 


570 


AMERICAN  CRIMINAL  REPORTS. 


frf, 


RoDiNSON  V.  State. 

(93  Ga.  77.) 

Resisting  Officer:  Murder — Justification— Inatrudionn, 

1.  Persons  orally  "  deputized  "  by  the  sheriff  to  assist  him  in  makinR  an 

arrest  for  felony  are  neither  officers  nor  mere  private  persons  whih'  co- 
operating with  the  sheriff  and  acting  under  his  orders,  but  their  lej,'!il 
position  is  that  of  apoaae  comitatus. 

2.  A  pei-son  summoned  by  the  sheriff  to  act  as  one  of  a  posse  to  aid  in  tlie 

execution  of  a  warrant  for  felony  in  the  sheriff's  hands  is  protected  in 
any  lawful  act  done  by  him  to  promote  or  accomplish  tlie  arrest  of  the 
accused  person,  to  the  same  extent  as  he  would  were  he  himself  an 
officer  having  pei-sonal  custody  of  the  warrant,  and  charged  with  its 
execution;  and,  in  order  for  him  to  have  this  protection,  it  is  not  neccs- 
sarj'  that  he  should  be  and  remain  in  the  actual  presence  of  the  sheriff; 
but  if  the  two  are  in  the  same  neigliborhood,  and  acting  in  concert,  the 
sheriff  giving  orders,  and  the  other  obeying  them,  either  literally  or 
according  to  their  general  spirit  and  pui-pose.  with  a  view  to  effect  tlie 
arrest  in  pursuance  of  the  common  design,  it  is  sufficient. 

3.  One  other  than  a  known  officer,  who  makes  an  arrest  for  felony  without 

having  the  warrant  in  his  own  possession,  ought  to  make  it  known,  on 
demand,  that  the  warrant  exists,  where  it  is,  and  that  he  claims  to  be 
acting  under  its  authority  or  by  command  of  the  officer  who  has  it 
in  his  possession;  but  the  omission  to  do  so  will  not  justify  the  party 
arrested,  or  sought  to  be  arrested,  in  resisting  the  arrest,  if  he  in  fact 
already  knows,  or  on  reasonable  and  probable  grounds  believes,  that  he 
is  under  a  charge  of  felony,  that  a  warrant  is  out  for  his  arrest,  and  that 
the  arrest  attempted  is  really  in  cansequence  of  the  warrant,  and  in 
execution  of  the  same.  If,  however,  the  demand  for  authority  be  made 
under  real  ignorance  of  these  things,  and  in  good  faitli  for  the  purjiose 
of  eliciting  information  actually  wanted  and  naeded,  failure  to  comply 
with  the  demand  would  justify  resistance  to  any  reasonable  and  proper 
extent;  and,  even  if  carried  so  far  as  the  slaying  of  the  pei-son  endeav- 
oring to  make  the  aiTest,  the  homicide  might  amount  to  manslaugliter 
only,  or,  if  such  person  made  the  fir^t  demonstration  with  a  deadly 
weapon,  the  killing  might  be  justifiable  homicide. 

4.  Tlie  court  in  its  charge,  having  made  the  case  turn  chiefly  on  the  right 

and  iK)wer  of  the  deceased  to  make  the  arrest,  irrespective  of  the  manner 
in  which  the  power  was  executed  and  of  the  failure  of  the  deceased  to 
respond  fully  to  the  demand  made  upon  him  for  his  authority,  and 
without  reference  to  the  good  or  bad  faith  with  which  that  demand 
was  made,  the  charge  was  erroneous,  and  the  accused  is  entitled  to  a 
new  trial. 


Error  from  Superior  Court,  "Whitfield  County;  T.  "W.  Milner, 


Judge. 


ROBINSON  V.  STATE. 


571 


George  Robinson  was  convioted  of  murder,  and  brings  error. 
Reversed. 


rm 


19. 

lakinR  an 
Is  wliii,..  fo- 
[  their  legal 

aid  in  the 
•otected  in 
•rest  of  the 
limself  iin 
■d  with  its 
not  neces- 
the  sherilF; 
)ncert,  tlie 
literally  or 

effect  the 

»y  without 
known,  on 
aims  to  be 
fho  has  it 
■  the  party 
he  in  fact 
es,  that  lie 
t,  and  that 
it,  and  in 
y  be  made 
le  purixwe 
to  comply 
nd  proi)er 
n  endeav- 
slaughter 
a  deadly 

the  rifflit 
B  manner 
-eased  to 
rity,  and 
demand 
tied  to  a 


^filner. 


M.  K.  Moore,  for  plaintiff  in  error. 

A.  W.  Fite,  Sol.  Gen.,  and  J.  M.  Terrell,  Atty.  Gen.,  for 
the  State. 

Ll'mi'Kin,  J.  1.  Where  it  is  the  duty  of  a  sheriff  to  arrest 
one  charged  with  a  felony,  we  know  of  no  law  which  autlior- 
izes  this  officer  to  "deputize"  a  private  citizen  either  to  make, 
or  assist  in  making,  the  arrest,  and  thus  constitute  the  person 
so  "  deputized  "  an  officer.  Under  section  4722  of  the  Code, 
every  officer  charged  with  the  execution  of  a  penal  warrant 
liiisthe  authority  to  summon  to  his  assistance,  either  in  writing 
or  verbally,  any  citizen  of  the  county.  When  citizens  are 
thus  summoned  by  the  slieriff,  tliey  are,  while  co-operating 
witli  him  and  acting  under  his  orders,  not  themselves  officers, 
nor  are  they  mere  private  persons,  but  their  true  legal  position 
is  that  of  ixposM  comltatus.  A  posse  may  be  summoned  under 
tlie  form  of  "deputizing"  the  person  or  persons  composing  it. 
The  mode  is  immaterial,  so  that  the  object  be  to  require  or 
command  assistance. 

2.  A  member  of  a, posse  comltatus  summoned  by  the  sheriff 
to  aid  in  the  execution  of  a  warrant  for  felony  in  the  sheriff's 
hands  is  entitled  to  the  same  protection  in  the  discharge  of  his 
duties  as  the  slieriff  himself;  and  to  this  end  a  person  so  sum- 
moned may  do  any  act  to  promote  or  accomplish  the  arrest 
which  he  could  lawfully  do  were  he  himself  the  sheriff,  having 
personal  custody  of  the  warrant,  and  bound  to  execute  the 
same.  See  13  Cr.  Law  Mag.,  p.  198,  §  30.  In  orde**  to  have 
tlie  benefit  of  this  protection  it  is  not  essential  for  a  member 
of  the  sheriff's  posse  to  be  and  remain  in  the  actual  physical 
presence  of  the  sheriff.  It  is  sufficient  if  the  two  are  in  the 
same  neighborhood,  actually  endeavoring  to  make  the  arrest, 
and  acting  in  concert  with  a  view  to  effect  this,  their  common 
design.  The  evidence  in  the  present  case  shows  that  the  de- 
ceased, Powell,  had  been  summoned  by  the  sheriff  to  aid  him 
in  making  the  arrest  of  Robinson,  under  a  warrant  charging 
the  latter  with  felony.  It  is  quite  likely  that  the  sheriff  sup- 
posed that  by  "  deputizing  "  Powell  he  had,  in  a  sense,  been 
made  an  oflBcer  for  this  purpose.    If  the  sheriff  really  enter- 


w 


572 


AMERICAN  CRIMINAL  REPORTS. 


tained  this  idea,  he  was,  as  already  stated,  mistaken.  ]'(>  this 
as  it  may,  however,  the  sheriff  was  near  the  scene  wIkiv  it 
was  expected  the  arrest  wouhl  take  ])lace,  and  had  given  or- 
ders to  Powell,  obedience  to  which  would  tend  to  accomplish 
the  arrest.  Powell  was  obeying  these  orders,  not  literally,  it 
is  true,  but  certainly  according  to  their  general  s])irit,  and  the 
variance  by  Powell  from  the  precise  instructions  given  liim 
by  the  sheriff  was  evidently  necessitated  by  a  change  in  the 
movements  of  the  accused  which  bad  not  been  anticipiited. 
Under  these  circumstances  we  hold  that  the  conduct  of  PowiU 
was  substantially  in  obedience  to  the  sheriff's  orders,  keepitic 
in  view  the  real  object  of  their  presence  in  the  vicinit}',  wliich 
was  untloubtedly  the  arrest  of  Robinson. 

It  was  seriously  contended  b}'  counsel  for  the  plaintiff  in 
.error  that  as  the  sheriff  was  not  in  sight  when  Powell  laid 
his  hand  on  Robinson  to  prevent  his  leaving  the  house  of  liis 
brother,  and  as  the  warrant  was  not  then  in  Powell's  possession, 
the  attempted  arrest  was  unauthorized  and  illegal.  The  law  ap- 
plicable to  this  contention  is  thus  aptly  stated  by  Mr.  I'ishop  in 
the  first  volume  of  his  work  on  Criminal  Procedure  (section  isOi; 
"Tojustify  the  private  person  who  thus  assists  the  officer,  the 
latter  must  be  in  some  sense  present,  commanding  him.  Tiiere 
is  no  precise  distance  which  the  two  may  be  apart;  but  where  a 
sheriff  is  endeavoring  to  make  an  arrest  or  j)reserve  the  peace, 
and  he  has  called  in  others  to  help  him,  he  is,  though  absent  from 
the  particular  place  occupied  by  them,  to  be  deemed  construct- 
ively present,  within  this  rule,  if  his  absence  is  in  furtherance  of 
the  common  design."  The  text  of  this  distinguished  author  is 
admirably  supported  by  the  case  of  Cot//es  v.  Ilurtin,  10  Joiins. 
85,  as  will  appear  from  the  following  extract  from  the  opinion 
of  Chief  Justice  Kent :  "  The  sheriff  is,  fjuodton  modo,  ])resent 
b}'  his  authority,  if  he  be  actually  engaged  in  efforts  to  arrest 
dum  ferret  opus,  and  has  commanded,  and  is  continuing  to 
command  and  procure,  assistance.  When  he  is  calling  upon  the 
power  of  the  count}',  or  a  requisite  portion  of  it,  to  enable  him 
to  overcome  resistance,  it  would  be  impossible  that  he  should  be 
actually  present  in  every  place  where  power  might  be  wanting. 
The  law  is  not  so  unreasonable  as  to  require  the  officer  to  be 
an  eye  or  ear  witness  of  what  passes,  and  to  render  all  his 
authority  null  and  void  except  when  he  is  so  present.  He 
could  not,  upon  that  construction,  use  the  power  of  the  county 


m 


ROBINSON  V.  STATE. 


573 


witli  effect,  and  it  would  be  attended  with  groat  i  neon  von  ionco 
and  danger  to  the  administration  of  justice.  The  question  in 
those  cases  does  not  turn  upon  the  fact  of  distance,  so  lojjr  as 
the  sheriff  is  within  his  county,  and  is  bona  fide  and  strictly 
en<;aged  in  tiie  business-of  the  arrest."  In  this  connection,  see, 
also.  Com.  V.  Field,  13  Mass.  321,  cited  by  Mr.  liishop.  ThcM'e 
is  an  obvious  distinction  between  the  officer's  calling  one  to 
his  assistance,  and  merely  attempting  to  delegate  his  authority 
aiiti  accomplish  the  arrest  through  the  agency  of  third  persons 
acting  alone,  as  in  the  case  of  Iie,v  v.  Patlenae,  7  Car.  »fe  P. 
775.  where  a  constable,  without  attcmjHing  himself  to  execute  a 
w  airant  in  his  hands,  emplo^'ed  his  two  sons  to  make  the  arrest. 
In  Ku'hlev.  Slate,  5  Te.x.  App.  CO,  it  was  held  that  persons  called- 
upon  by  an  officer  holding  a  warrant  to  assist  in  the  arrest  of  a 
p:irty  charged  with  crime  were  protected,  wliether  they  had 
the  warrant  at  the  time  of  the  attempted  arrest  or  not. 

Under  the  facts  as  disclosed  by  the  record  now  before 
us,  we  think  the  sheriff  was  at  least  constructively  pres- 
ent when  Powell  was  attempting  to  arrest  Kobinson,  although 
the  officer  was  not  in  sight  at  that  time.  lie  was  using  Pow- 
ell to  accomplish  the  arrest,  just  as  though  he  had  reached  out 
his  own  arm,  supposing  it  was  physically  possible  for  him  to 
do  so,  over  the  entire  distance,  and  had  taken  hold  of  the  per- 
son of  Robinson  himself.  Powell  was  really  a  mere  i)hysical 
aoency  employed  by  the  sheriff,  by  means  of  which  the  officer 
was  enabled  to  extend  his  presence  to  the  scene  of  action.  It 
was  undoubtedly  the  right  of  the  sheriff  to  do  this,  he,  of 
course,  being  responsible  for  the  consequences  of  Powell's  acts 
so  long  as  the  latter  conformed  literally  or  substantially  to  the 
sherilF's  orders.  A  sheriff  on  foot  might  be  unable  to  overtake 
a  ffeeing  in'isoner  who  could  run  faster  than  the  officer;  but  if 
he  shouted  to  a  bystander  to  seize  the  fugitive,  and  this  was 
done,  it  would  be  a  seizure  by  the  sheriff;  and  this,  we  think, 
would  be  undoubtedly  true,  even  though  the  fugitive  ran  out 
of  the  sheriff's  sight  before  the  bystander  succeeded  in  over- 
taking and  catching  the  escaping  prisoner.  The  case  before  us 
is,  in  principle,  within  the  class  covered  by  this  illustration. 

There  is  nothing  in  the  case  of  Croom  v.  State,  85  Ga.  718,  con- 
trary to  what  is  here  ruled.  A  warrant  for  the  arrest  of 
Croom  was  in  the  hands  of  the  marshal  of  Ty  Ty,  who,  with- 
out delivering  it  to  Hamlin,  a  bailiff,  showed  it  to  him,  and 


\\ 


Y^ 


674 


AMERICAN  CRIMINAL  REPORTS. 


t.)l(l  him  if  li3  would  arrest  Croom,  he  (the  murshal)  would 
(liviilo  with  Ilimilin  u  reward  of  i^25  which  the  foriiier  hud 
boon  ofForod  for  making  the  arrest.  Ilamlin,  without  the  war- 
rant, and  on  his  own  account,  went  with  i\.j}o«ne  summoned  l)y 
himself  to  the  house  of  Groom's  father,  and  was  there  killed 
by  Croom.  Under  these  circumstances,  Chief  Justice  I'lcHklcy 
very  properly  said,  on  page  722  (85  Ga.):  "  The  warrant,  not 
being  in  the  hands  of  Ilamlin,  but  in  the  possession  of  tiiu 
marshal  of  Ty  Ty,  who  was  not  ])resent,  was  no  authoiity  to 
IIiMulin  to  make  an  arrest."  Ilamlin  was  in  no  sense  actiii"- 
as  one  of  a, posse  summoned  by  the  marslial.  Indeed,  the  lat- 
ter hid  nothing  whatever  to  do  with  the  attempted  anvst, 
cither  in  its  inauguration  or  in  the  method  adopted  for  its  exe- 
cution. Groom's  case,  therefore,  is  similar  to  that  of  /A,/-  i\ 
]*atience,  supra;  and  Ilamlin  did  not  bring  himself  within  the 
rule  as  stated  in  Whart.  Ilom.,  §  212,  "  that  the  warrant  niust 
be  executed  by  the  i)arty  named  in  it,  or  by  some  one  assisting 
such  party,  either  actually  or  constructively;"  nor  within  tiie 
principle  of  Codd  v.  Cabe,  13  Gox  Gr.  Gas.  202.  There  is  also 
a  distinction  between  the  authority  of  an  officer  to  arrest  with- 
out a  warrant  in  cases  of  felony  and  of  misdemeanor.  Tlius, 
it  has  been  said  that  "he  may  arrest  any  one  of  whom  he  has 
a  reasonable  suspicion  that  he  has  committed  a  felony,  without 
waiting  first  to  procure  a  warrant;"  but  without  first  procur- 
ing such  warrant,  "  he  may  not  arrest  one  who  has  committed 
*  *  *  a  misdemeanor  out  of  his  presence."  See  13  Vv. 
Law  Mag.,  pp.  177,  178,  and  cases  cited.  On  the  same  line  is 
the  case  of  Drennan  v.  People,  10  IMich.  169,  in  which  it  was 
hold  that  a  constable,  having  knowledge  that  a  warrant  had 
been  issued  for  the  arrest  of  a  person  charged  with  felony, 
could  lawfully  make  the  arrest  without  having  the  warrant  in 
his  possession.  This  case  will  also  be  referred  to  in  connection 
with  the  question  discussed  in  the  next  division  of  this  opinion. 
We  are  fully  convinced  that  the  rule  announced  in  the  second 
headnote  is  both  sound  in  principle  and  well  supported  by 
authority. 

3.  It  appears  that  when  PoAvell  grasped  Robinson  by  his 
right  arm,  the  former  said,  "  I  am  deputized  to  arrest  you," 
to  which  Robinson  replied,  "  Show  your  authority,"  and  the 
answer  which  Powell  made  to  this  demand  was,  "  It  don't 
make  any  difference;  I  have  got  to  take  you."     Under  these 


ROBINSON  V.  STATE. 


575 


circumstances  we  think  it  was  the  duty  of  Powell  to  Im -'^  in- 
foniiod  Itobinson  of  the  existence  of  the  w.'rmnt  in  the  shor- 
itl's  hands,  and  also  that  ho  (Powell)  was  atlunpting  to  nmke 
tilt!  arrest  under  authority  of  this  warrant,  or  ,it  least  that  he 
had  boon  commanded  by  the  sheriff  to  do  so.  As  a  ;;<'neral 
rule,  a  known  officer,  in  making  an  arrest,  is  not  bound  to  ex- 
hibit his  authority.  Certainly,  he  is  not  absolutely  rcciuired 
to  do  so  before  the  accusetl  person  has  submitted  to  the  arrest; 
but  after  the  subiuission  the  olHcer  ought  to  nuUce  known  the 
substance  of  the  warrant,  and  for  what  cause  and  whence  it 
issued.  Where,  however,  one  not  a  known  officer  is  specially 
suunuoned  to  make  an  arrest,  he  ought,  unless  prevented  by 
the  conduct  of  the  accused  from  so  doing,  to  show  the  warrant 
upon  demand,  or,  if  it  is  not  in  his  jjossession,  it  is  his  duty  to 
state  the  authority  under  which  he  is  acting.  Sf^de  if.  t'lU'tis, 
1  llayw.  (X.  C.)  471;  1  IJish.  Cr.  Proc.  §  11)1;  ^[urfree,  Sher. 
§§  152,  I'lS.  Accordingly,  it  was  said  in  Dnn/ut/i'tt  Case, 
aujii'd,  that  a  constable  attempting  to  nudie  an  arrest  for  a 
felony  without  having  the  warrant  in  his  possession  ought  to 
inform  the  person  arrested  of  the  facts,  or  at  least  of  the  offense 
for  which  he  was  apprehended.  In  this  connection,  see  also, 
13  Cr.  Law  Mag.  34:3.  Assuming,  however,  as  sound  law,  that 
it  is  the  duty  of  one  who  has  been  summoned  by  an  officer  to 
assist  in  making  an  arrest  for  a  felony  to  explain  to  the  jierson 
sought  to  be  arrested  the  cause  for  which  his  apprehension  is 
attempted,  and  the  nature  of  the  process  under,  which  the  ar- 
resting ])arty  assumes  the  authority  to  act,  the  omission  to 
perform  this  duty  will  not  necessarily  justify  the  person  sought 
to  be  arrested  in  resisting  the  attempted  arrest.  If  he  in  fact 
already  knows,  or  on  reasonable  and  probable  grounds  believes, 
that  he  is  under  a  charge  of  felony,  that  a  warrant  has  been 
issued  for  his  arrest,  and  that  the  arrest  attempted  is  really  in 
consequence  of  the  warrant  and  in  execution  of  the  same,  he 
ouglit  to  submit  peaceiiuiy  to  the  arrest.  If  he  refuse  to  do 
so  under  such  circumstances,  his  resistance  will  be  at  his  peril. 
"  One  who  is  guilty  of  a  felony  has  no  right  to  kill  one  who 
pursues  him  if  w^.  has  notice  of  the  object  of  the  pursuit, 
whether  the  pursuer  be  an  officer  or  a  private  person,  or 
whether  he  be  with  or  without  a  warrant."  Kerr,  Horn., 
§  189.  See,  also,  the  cases  cited  under  this  section. 
This  doctrine  is  in  complete  harmony  with  that  announced  by 


1', 


'I  I 


p-.^ 


676 


AMERICAN  CRIMINAL  REPORTS. 


tliis  court  in  Snellb\g  v.  State,  87  Ga.  50,  13  S,  E.  154,  wl.ore  it 
jippejired  that  the  accused  killed  one  who  was  attemptin;,^  to  ar- 
rest him  for  a  felony  for  which  he  had  been  indicted  throe  years, 
the  deceased  being  in  fact  an  officer,  though  he  did  not  discN^se 
his  character  as  such,  or  exhibit  or  mention  the  warrant  under 
which  he  was  acting.  It  was  accordingly  held  in  thi'.t  case 
that,  the  circumstances  showing  that  the  accused,  who  was  a 
fugitive  from  justice,  must  have  apprehended  the  arrest,  and 
realized  th;;  intention  of  the  arresting  part}',  the  killing  was 
murder,  it  was  manifest  that  the  accused  was  not  in  good 
faith  resisting  an  attack  which  he  had  any  right,  under  the 
circumstances,  to  believe  was  a  mere  unauthorized  assault,  it 
further  appearing  that  before  he  tired  the  fatal  shot  the  de- 
ceased had  said  to  him,  "  Consider  yourself  under  arrest."  The 
same  principle  controlled  the  case  of  Iiai)iscy  v.  /State,  92  (ia. 
53,  in  which  it  distinctly  appeared  that  the  accused  knew  the 
official  character  of  the  policeman  atteni])ting  his  arrest,  and 
also  that  this  policeman  had  bee«  summoned  by  the  wife  of 
the  accused  to  arrest  the  latter  for  beating  her;  and  the  officer 
plainly  and  distinctly  announced  his  purpose  to  make  the  ar- 
rest for  this  breach  of  the  peace,  which  had  just  taken  })hice 
in  his  presence  or  hearing.  If  the  demand  nmdc  l>y  Ilobinson 
for  I'oweirs  authority  was  a  mere  i)'otense,  and  he  really 
knew,  or  ought  to  have  known,  wh ;/  Powell  was  attempting 
to  apprehend  him,  he  had  no  right  whatever  to  resist  the  ar- 
rest, and  his  conduct  in  so  doing  was  totally  unauthorized  and 
unlawful.  If,  however,  the  demand  for  authority  was  made 
in  good  faith,  and  under  real  ignorance  of  the  facts,  for  the 
purpose  of  eliciting  information  actually  wanted  and  needed, 
resistance  by  Robinson,  to  any  reasonable  and  j)r()per  extent, 
upon  the  failure  of  Powell  to  comply  with  this  demand,  would 
have  been  justifiable;  and  oven  the  slaying  of  Powell  might, 
under  these  circumstances,  have  been  manslaughter  only.  It 
has  been  said  that,  "unless  the  slayer  knows  the  official  char- 
acter of  the  deceased,  the  homicide  is  only  manslaughter,  wheii! 
committed  without  deliberation;"  but,  "if  the  killing  were 
clearly  malicious  and  premeditated,  the  fact  that  the  officer 
was  acting  under  a  void  process  is  no  mitigation  or  excuse. 
The  same  is  true  if  the  defendant  had  knowledge  that  the  in- 
tended arrest  was  one  which  the  officer  had  a  rii^ht  to  make 
without  a  warrant."    Kerr,  Horn.,  §98.     The  following  is  a 


m 


ROBINSON  V.  STATE. 


u  i 


correct  and  concise  statement  of  the  law  applicable  in  sucli 
cases  :  "  Notice  of  the  oflicial  character  of  the  oificer  to  the 
person  charged  with  killing  him  is  a  material  question  in  all 
these  inquiries.  This  notice  may  be  express  or  im])lied.  If 
tliere  is  no  notification,  either  express  or  implied,  by  which 
we  may  say  if  the  prisoner  has  no  information  of  the  officer's 
powers  and  intentions,  or  of  the  character  in  which  the  person 
is  acting,  the  killing  will  be  manslaughter  only;  otherwise,  it 
will  be  murder."     13  Cr.  Law  Mag.,  p.  516,  §  57,  citing  cases. 

If  Robinson  was  acting  in  perfect  good  faith  in  making  the 
demand  and  resisting  the  arrest,  honestly  believing  Powell 
was  making  a  totally  unauthorized  assault  upon  him,  and 
if  Powell  made  the  first  demonstration  with  a  deadly  weapon, 
and  thus  put  Robinson  in  danger  of  life  or  limb,  the  killing  by 
Robinson  might  have  been  altogether  justifiable.  Of  course, 
we  do  not  mean  to  express,  or  even  intimate,  what  the  real 
truth  was.  The  killing  of  Powell  by  the  accused  presents  a 
case  of  murder,  voluntary  manslaughter,  or  justifiable  homi- 
cide, according  to  the  facts  as  they  may  be  found  by  the  jury, 
in  the  light  of  the  principles  announced  in  this  opinion. 

4.  Taking  into  view  the  charges  of  the  court  complained  of 
and  the  refusals  to  charge,  in  connection  with  the  entire  charge 
of  the  court  as  sent  up  in  the  record,  it  is  quite  clear  that  the 
case  was  made  to  turn  chiefly  on  the  right  and  power  of  the 
deceased  to  make  the  arrest,  irrespective  of  the  manner  in  which 
that  power  was  exercised,  and  of  the  failure  of  the  deceased  to 
respond  fully  to  the  demand  made  upon  him  for  his  authority, 
and  without  reference  to  the  good  or  bad  faith  with  which 
that  demand  was  made.  The  case,  therefore,  was  not  properly 
submitted  to  the  jury,  and  there  should  be  a  new  trial.  While 
it  is  true  that  the  court  read  to  the  jury  the  sections  of  the 
code  defining  voluntary  manslaughter  and  justifiable  homicide, 
he  did  not  give  ayipropriate  instructions  for  applying  either  of 
these  sections  in  conformity  to  the  principles  which  ought,  in 
view  ^  the  issues  of  fact  involved,  to  have  controlled  the  de- 
termination of  the  case. 

Some  other  questions  were  made  in  the  motion  for  a  new 
trial,  but,  as  they  can  not  possibly  arise  upon  the  next  hearing, 
they  require  no  notice  at  our  bauds.    Judgment  reversed. 
87 


578 


AMERICAN  CRIMINAL  REPORTS. 


iff" 


Note. — Indictment  and  information. — Where  the  information  alleged 
that  respondent  knew  that  the  officer  was  serving  process,  and  that  tlie  per- 
sons with  him  were  assisting  him,  it  was  unnecessary  to  allege  that  tlie 
officer  had  asked  them  to  assist  him,  or  that  it  was  necessary  for  him  to 
have  assistance,  as  respondent  had  no  right  to  assault  them,  though  their 
aid  was  unnecessary,  and  they  were  mere  volunteers.  State  v.  Einvrij,  65 
Vt.  464. 

An  information  for  resisting  an  officer  while  serving  a  warrant  of  arrest 
on  defendant  alleged  that  the  warrant  charged  defendant  "with  a  crime 
against  the  laws  of  the  state,"  and  that  it  "  was  duly  and  regularly  issued 
from  a  justice  of  the  peace  court "  of  a  certain  precinct.  HvUl,  tliat  tlie 
averments  as  to  the  legality  of  the  warrant  were  sufficient.  State  v.  Bvoicn, 
6  Wash.  609. 

An  indictment  for  resisting  and  assaulting  an  officer  attempting  to  execute 
a  warrant  of  arrest  with  intent  to  murder  him  should  be  quashed,  wliere 
the  warrant  was  illegal,  since  one  is  not  required  to  submit  to  arrest  under 
an  illegal  warrant. 

Though  one  resisting  an  arrest  under  an  illegal  warrant,  if  he  resists  in  an 
xmwarrantable  or  illegal  manner,  may  be  resjwnsible  for  his  acts,  he  can  not 
be  convicted  of  assault  with  intent  to  murder.  Toliver  v.  State,  32  Tex.  Cr. 
R.  444;  see,  also.  State  v.  Caritenter,  54  Vt.  551;  4  Am.  Cr.  R.  559.  and  note 
to  Fleetwood  v.  Com.,  80  Ky.  1;  4  Am.  Cr.  R.  37. 

Resisting  officer — Levy  of  attachment. — Where  a  sale  of  personalty  was 
made,  but  title  was  not  completed  by  delivery  and  possession,  and  an  attacli- 
ment  against  the  party  in  possession  was  being  levied  on  the  goods,  any 
interference  by  an  agent  of  the  claimant  with  the  officer  was  unhiwful. 
Commonwealth  v.  McHugh,  157  Mass.  457. 

One  who  knows  that  a  misdemeanor  has  been  committed,  and  afterward 
opposes  the  apprehension  of  the  wrongdoer,  or  obstructs  an  officer  of  the  law 
in  the  execution  of  his  legal  duty  in  relation  thereto,  or  advises  and  aids  the 
offender  to  make  his  escape  and  carrj'  off  tlip  subject  and  evidence  of  the 
crime,  becomes  guilty  of  the  crime  previously  committed  as  i)riucipal. 
United  States  v.  Sykea  (D.  C.  W.  D.  N.  C),  58  Fed.  Rep.  1000. 


Anderson  v.  Piekce  County. 

(40  Neb.  481.) 

Reward:    Payment  before  conviction. 

Section  296  of  the  Criminal  Code,  authorizing  counties  to  offer  rewards  for 
the  detection  or  apprehension  of  persons  charged  with  a  felony,  does 
not  authorize  the  payment  of  such  reward  until  conviction.  This  con- 
dition applies  as  well  to  an  offer  made  simply  for  the  apprehension  of  a 
person  as  to  one  made  for  detection  and  apprehension. 


Error  from  District  Court,  Pierce  County;  Powers,  Judge. 


ANDERSON  v.  PIERCE  COUNTY. 


570 


Action  by  Nels  Anderson  against  the  county  of  Pierce,  to 
recover  a  reward.  Demurrer  by  defendant  sustained,  and 
plaintiff  brings  error.    Affirmed. 

Barnes  cfe  Ti/?er,  for  plaintiff  in  error. 
Domjlas  Cc^^es,  for  defendant  in  error. 

Irvine,  C.  The  plaintiff  in  error  filed  his  claim  with  the 
commissioners  of  Pierce  county  for  a  reward  offered  by  the 
county  for  the  apprehension  of  an  escaped  prisoner.  The 
claim  was  rejected,  and  he  appealed  to  the  district  court, 
where  a  demurrer  to  his  petition  was  sustained,  and  judgment 
entered  for  the  county;  which  judgment  the  plaintiff  in  error 
seeks  to  reverse. 

The  petition  alleges  the  offer  to  have  been  made  as  follows : 
"  It  appearing  that  one  Ed.  Staggs,  while  under  arrest  cliarged 
wiUi  the  crime  of  murder,  has  escaped  from  the  custody  of  the 
sheriff  of  Pierce  county,  whereupon  it  is  ordered  that  a  reward 
of  ^200  be,  and  the  same  is  hereby,  offered  for  the  apj)rehen- 
sion  of  the  said  Ed.  Staggs,  and  his  return  to  the  custody  of  the 
sheriff  of  the  said  county,  as  provided  by  section  290,  chaptci 
27,  Criminal  Code  of  Compiled  Statutes."  The  petition  does 
not  allege  that  Staggs  was  convicted.  The  want  of  that  aver- 
ment is  the  reason  urged  in  support  of  the  demurrer.  Section 
2'J6  of  the  Criminal  Code  is  as  follows:  "The  count}' com- 
missioners of  the  several  counties  in  this  state  are  hereby  au- 
tliorized,  when  they  deem  the  same  expedient,  to  (jffer  such 
rewards  as  in  their  judgment  the  nature  of  rhe  case  may  re- 
quire, for  the  detection  or  apprehension  of  any  person  charged 
with  or  convicted  of  a  felony,  and  pay  the  same  on  the  con- 
viction of  such  person,  together  with  all  necessary  expenses 
not  otherwise  provided  for  by  law,  incurred  in  making  such 
detection  or  apprehension,  out  of  the  county  treasury." 

The  plaintiff  in  error  contends  that  the  clause  providing 
that  the  reward  should  be  iiaid  on  conviction  applies  only  to 
cases  where  the  detection  of  a  person  is  a  part  of  the  require- 
ment of  the  offer;  that  is  to  say,  that  where  a  crime  is  com- 
mitted, and  the  perpetrator  is  unknown,  a  person,  to  claim  the 
reward,  must  furnish  the  information  necessary  to  fix  the  crime 
upon  the  person  apprehended,  and  that  a  conviction  is  there- 
fore necessary  to  the  performance  of  the  contract;  but  that 


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AMERICAN  CRIMINAL  REPORTS. 


where  there  has  already  been  a  conviction  had,  or  where  a 
person  has  been  under  arrest  charged  Avith  a  crime,  and  an 
escape  has  been  effected,  simply  a])prehending  the  fugitive 
completes  the  performance,  and  entitles  the  captor  to  the  re- 
ward. The  plaintiff  further  contends  that  the  offer  was  f^en- 
eral  in  its  terms,  and  that,  irrespective  of  the  statute,  it  was 
binding  upon  the  county,  and  entitled  him  to  recover  without 
conviction  of  the  person  apprehended.  This  court  has  never 
before  been  called  upon  to  construe  the  statute  referred  to. 
We  are  not  cited  to  any  decisions  of  other  states  having  similar 
statutes,  nor  have  we  been  able  to  find  any  in  point.  As  to 
the  second  argument  advanced,  it  is  sufficient  to  say  that. 
whether  or  not  authority  to  offer  rewards  would  be  im])li(.'d  in 
the  absence  of  an  express  statute,  the  offer  in  this  case  con- 
tained an  express  reference  to  section  296  of  the  Criminal 
Code,  and  the  offer  was  clearly  made  in  pursuance  of  that  sec- 
tion. If  there  be  any  authority  independent  of  that  statute, 
still  this  reference  to  the  statute  incorporated  it  into  the 
offer,  so  that  in  an}*^  event  the  statute  must  be  treated  as  a  part 
of  the  contract. 

3.  Authority  to  offer  such  rewards  is  not  usuall}'  implied. 
and  the  courts  hav^e  been  inclined  to  a  strict  construction  of 
such  powers.  Thus,  an  act  of  congress  gave  to  the  city  of 
AVashington  the  power  "  to  sue  and  be  sued,  implead  and  l)e 
impleaded,  grant,  receive  and  do  all  the  other  acts  as  natural 
persons,  and  to  purchase  and  hold  real  estate."  Another  act 
gave  to  it  "  full  power  and  authority  to  make  all  necessary 
laws  for  the  protection  of  public  and  private  propertj',  the 
preservation  of  order  and  the  safety  of  persons  *  *  *  and 
for  the  punishment  of  all  persons  violating  the  same."  Tlie 
legislative  authorities  of  the  city  authorized  a  reward  of  $20,00(  • 
for  the  arrest  and  conviction  of  persons  concerned  in  the  as- 
sassination of  President  Lincoln;  but  the  court  held  that  this 
act  was  not  within  the  scope  of  the  authority  conferred  upon  the 
city  by  act  of  congress.  Baker  v.  City  of  Washington,  7  D.  C. 
131.  So,  too,  where,  as  in  the  case  of  the  individual,  the  author- 
ity to  contract  is  clear,  the  contract  itself  has  been  subjected 
to  a  strict  construction.  Thus,  in  Jones  v.  Phwmx  Bank,  8  N. 
y.  228,  where  a  reward  was  offered  for  the  apprehension  of  a 
person  to  whom  forged  checks  had  been  paid,  and  the  recovery 
of  the  money,  or  a  proportional  amount,  or  any  part  thereof, 


ANDERSON  v.  PIERCE  COUNTY, 


{^Sl 


it  was  held  that  both  the  apprehension  of  the  person  named 
and  the  recovery  of  some  of  the  money  were  essential  to  sus- 
tain a  claim  for  any  part  of  the  reward.  And  in  Cornehon  v. 
Insurance  Co.,  7  La.  Ann.  345,  a  reward  w^as  offered  for  th(} 
conviction  of  any  person  w^ho  may  have  been  concerned  in  set- 
ting fire  to  any  building.  It  was  held  that  this  offer  applied 
only  to  persons  who  had  at  that  time  committed  the  offense, 
and  not  to  those  who  might  thereafter  commit  it,  and  also  that, 
where  a  person  apprehended  was  convicted  only  of  having 
prepared  combustible  matters  and  placed  them  under  a  build- 
ing with  intent  to  setting  fire  to  it,  and  not  of  setting  fire 
to  the  building,  the  reward  was  not  earned. 

Unless  a  very  liberal  construction  should  be  given  to  the 
statute  under  consideration,  it  would  seem  quite  clear  that  the 
reward  becomes  due  in  no  case  except  upon  conviction.  The 
plaintiff  argues  that,  unless  his  construction  be  given  the  stat- 
ute, that  part  of  it  applying  to  persons  already  convicted 
would  be  nugatory.  This  is  not  true.  Where  a  person  already 
convicted  escapes,  the  condition  of  conviction  already  exists, 
and  upon  apprehension,  that  condition  is  complied  .with;  but, 
in  the  case  of  a  fugitive  before  trial,  the  reward  maybe  earned, 
in  a  certain  sense,  upon  apprehension,  but  by  the  terms  of  the 
statute  it  is  not  payable  until  conviction,  or  unless  a  convic- 
tion be  had.  The  distinction  in  reason,  suggested  by  the 
])laintiff,  is  obvious,  and  had  the  legislature  intended  to  create 
it,  it  certainly  would  have  been  expressed.  We  think  that  in 
no  case  arising  under  this  statute  is  a  reward  payable  except 
upon  conviction  of  the  captive,  and  therefore  the  demurrer 
was  properly  sustained.    Judgment  affirmed. 

Note. — Payable  when. — Construing  a  statute  allowing  a  reward  for  the 
arrest  and  delivery  of  one  "who  has  killed  another  and  is  fleeing,"  etc., 
Campbell,  C.  J.,  in  Martin  v.  Copiah  County,  71  Miss.  407,  says:  "  This 
statute  has  relation  to  the  cause  of  death,  as  held  in  Board  v.  Wells,  67  Miss. 
151,  and  therefore  the  reward  is  payable  by  the  county  in  which  the  cause 
of  death  is  given.  The  question  now  presented  is  whether,  for  the  reward, 
the  person  killing  may  be  said  to  have  killed  another  when  the  mortal  blow 
is  struck  of  which  the  person  soon  dies,  although  death  does  not  occur 
until  after  the  arrest  of  the  fugitive  who  gave  the  mortal  wound.  Tlie  man- 
ifest purpose  of  the  act  giving  a  reward,  is  to  incite  to  the  arrest  of  fleeing 
homicides,  and  secure  them  for  trial;  and  an  interpretation  of  the  statute 
which  i-equires  that  the  victim  of  a  mortal  wound  shall  be  actually  dead 
before  arrest  to  entitle  to  the  reward,  is  too  literal,  and  would  exclude  cases 
which  fall  clearly  within  the  spirit  and  purjiose  of  the  law.    The  law  at  an 


582 


AMERICAN  CRIMINAL  REPORTS. 


early  day  was  that,  for  several  purposes,  he  who  gave  another  a  mortal 
stroke,  where  death  ensued  in  a  year  and  day,  was  held  to  have  killed  when 
the  stroke  was  given,  and  not  when  the  offense  was  consummated  by  the 
death.  1  Hale,  P.  C.  p.  426;  1  Hawk.  P.  C.  p.  93.  The  recognized  doi  triiie 
is  that  where  a  mortal  wound  is  given,  and  the  wounded  pei-son  dies  within 
a  year  and  a  day,  the  intendmt>nt  of  the  law  is  that  the  wound  caused  tlie 
death.  The  wound  is  the  cause,  and  death  a  consequence.  In  popular  lan- 
guage, and  in  legal  phraseology,  for  some  purpose,  a  party  is  said  to  have 
killed  one  on  whom  he  has  inflicted  a  blow  of  which  the  wounded  ptrstm 
sfjon  dies.  If  a  mortal  blow  was  struck,  and  the  party  wounded  languislied 
.  houra  before  the  heart  ceased  its  pulsations,  and  the  escaping  crinii- 
iii)  wv  in-ested  but  a  few  minutes  before  thedeath  of  his victhn.all  would 
^'c^i  t'taL  it  was  too  literal  an  interpretation  of  the  statute  to  deny  tiie  reward 
to  the  pirson  who  arrested  and  delivered  the  fleeing  homicide.  If,  in  tiiat 
c  ase,  the  reward  would  be  due,  so  in  any  case  where  an  arrest  is  mado  of 
one  hoh;  i  on  a  mortal  wound  which  results  in  death,  for  adistimtion 
can  not  be  !/ia(^..>,  v  ich  reference  to  the  statute,  between  a  few  minutes  or 
hours  or  days.' 

Defendant  pleading  guilty  does  not  defeat  recovery  of, — Mill.  &  V. 
Code,  §  5332,  makes  it  unlawful  for  any  person  to  carry  a  bowie  knife,  etc. 
Section  5526  provides  that  any  civil  officer  who  shall  arrest  and  prosi'oute 
to  conviction  any  peraon  guilty  of  any  such  offense  shall  be  entitled  to  ^"iO, 
to  be  ta  ed  as  costs  against  defendant.  Held,  that  where  an  officer  arrested 
defendant,  and  procured  his  indictment  for  such  offense,  the  fact  that 
defendant  pleaded  guilty  is  no  objection  to  the  officer's  right  to  such  costs. 
There  was  no  less  a  prosecution  and  a  conviction  because  a  plea  of  guilty 
was  entered.  The  offender  was  as  effectively  prosecuted  and  convicted  as 
if  the  state  had  established  her  case  by  the  fullest  proof.  The  fact  tiiat 
one  making  such  arrest  is  a  policeman,  "  a  sjilaried  officer"  of  a  city,  is  no 
bar  to  his  demand  for  the  reward.    Porterfield  v.  State,  92  Tenn.  289. 


Blackwell  v.  State. 
(80  Tex.  Ct.  App.  672.) 

Riot:  Indictment. 

An  indictment  or  information  for  riot  must  show  for  what  purpose  the 
rioters  assembled,  that  the  court  may  judge  whether  it  was  lawful  or 
not,  and  it  must  state  that  the  defendants  unlawfully  assembled.  It 
must  likewise  state  the  illegal  act  which  was  the  object  of  the  meeting;: 
for  a  riot  is  a  compound  offense;  there  must  not  only  be  an  unlawful 
act  to  be  done,  but  an  unlawful  assembly  of  more  than  two  persons. 


Appeal  from  Waller  County  Court;  A.  G.  Lipscomb,  Judge. 
Ilarve}'^  Blackwell  was  convicted  of  a  riot,  and  appeals. 
Reversed. 


BLACKWELL  v.  STATE. 


5S3 


Reese  tfc  TompJcins,  for  appellant. 

Richard  II.  Harrison,  Assistant  Attorney-General,  for  the 
State,  confessed  error  upon  the  insufficiency  and  invalidity 
of  the  indictment. 

WiuTK,  P.  J.  Appellant  was  indicted  for  and  convicted  of 
a  riot,  under  article  295  of  the  Penal  Code,  which  reads  :  "  If 
the  persons  unlawfully  assembled  together  do,  or  attempt  to 
do,  any  illegal  act,  all  those  engaged  in  such  illegal  act  arc  guilty 
of  riot."  And  article  305  of  the  Penal  Code  provides  that,  "  if 
any  person,  by  engaging  in  a  riot,  shall  disturb  the  inmates  of 
any  residence  by  loud  and  unusual  or  unseemly  noises,  or  by 
the  discharge  of  firearms  in  the  immediate  vicinity  of  such  res- 
idence, he  shall  be  punished  by  a  fine  of  not  less  than  fifty  nor 
more  than  five  hundred  dollars.  A  residence  may  be  either  a 
public  or  a  private  house."  Article  308  provides  that  "  a  per- 
son engaged  in  any  riot,  wher(  Uy  an  illegal  act  is  committed, 
shall  be  deemed  guilty  of  the  otFense  of  riot,  according  to  the 
character  and  degree  of  such  offense,  whether  the  said  illegal 
act  was  in  fact  perpetrated  by  him,  or  by  those  with  whom  he 
was  participating."  Article  309,  Penal  Code,  provides: 
"  Where  the  assembly  was  at  first  lawful,  and  the  persons  so 
assembled,  afterward  agreed  to  join  in  the  commission  of  an 
act  which  would  amount  to  a  riot,  if  it  had  been  the  original 
purpose  of  the  meeting,  all  those  who  do  not  retire  when  the 
change  of  purpose  is  known  are  guilty  of  riot. "  Article  311, 
Penal  Code,  reads:  "The  indictment  or  information  must, 
likewise,  state  the  illegal  act  which  was  the  object  of  the  meet- 
ing, or  which  they  proceeded  to  do,  if  the  assembly  was  origi- 
nally lawful."  The  information  in  this  case  charges  (omitting 
the  formal  imrts)  that  "on  the  25th  day  of  May,  1891,  in  the 
county  of  Waller  and  state  of  Texas,  one  Harvey  Blackwell 
*  *  *  did  then  and  there  unlawfully  engage  in  a  riot  with 
one  Fenton  Moore,  Isaac  Huff,  Tom  Huff,  Alfred  Ecklcs,  and 
various  other  persons,  who  had  assembled  at  the  residence  of 
L.  D.  Thompson;  and  he,  the  said  Harvey  Blackwell,  did  then 
and  there,  acting  together  with  said  Fenton  Moore,  Isaac  Huff, 
Tom  Huff  and  Alfred  Eckles,  and  various  other  persons,  dis- 
turb the  inmates  of  said  L.  D.  Thompson's  residence  by  the  dis- 
charge of  firearms  in  the  immediate  vicinity  of  the  said  L.  D. 
Thompson's  residence,    *    *    *    against  the  peace  and  dig- 


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5S4 


AMERICAN  CRIMINAL  REPORTS. 


i.«'. 


nity  of  the  state."  Defendant  moved  in  arrest  of  judgment, 
because  tbe  information  upon  which  he  was  tried  did  not  cliarge 
an  offense  known  to  the  penal  laws  of  the  state  of  Texas,  be- 
cause the  information  did  not  charge  the  offense  in  pUiin  and 
intelligible  words,  and  because,  in  charging  that  defendant 
"  did  unlawfully  engage  in  a  not,"*  the  information  states  a 
legal  conclusion  only. 

Our  statute  (article  279,  Pen.  Code)  provides  :  '*  An  unlaw- 
ful assembly  is  the  meeting  of  two  or  more  persons,  with 
intent  to  aid  each  other,  by  violence  or  by  any  other  manner, 
either  to  commit  an  offense,  or  illegally  to  deprive  any  person 
of  any  right,  or  to  disturb  him  in  the  enjoyment  thereof."  As 
wo  have  seen  above,  in  article  295,  if  any  persons  unlawfully  as- 
semble together  to  do  orattempt  to  do  any  illegal  act,  all  those 
engaged  in  such  illegal  act  are  guilty  of  riot.  In  his  invalu- 
able work  on  Criminal  Forms,  Judge  Willson  has  jirovided  us 
with  no  form  of  an  indictment  or  information  for  riot;  but  he 
says,  at  page  192,  §  197:  "It  is  deemed  unnecessary  to  give 
forms  for  indictments  for  this  offense.  The  ])leader  will  first 
allege  the  unlawful  assembly  and  the  purpose  thereof,  accord- 
ing to  the  proper  form,  and  then  proceed  to  allege  that  the 
parties  did  do,  or  attem])ted  to  do,  the  acts  which  they  assem- 
bled together  to  do."  Mr.  Bishop,  discussing  the  form  of  an 
indictment  for  riot,  says :  "  To  constitute  this  offense,  there 
must  be  (l)an  assemblage  (2)  consisting  of  three  or  more  per- 
sons, and  (3)  a  disorderly  act  performed  by  them,  of  a  sort  cal- 
culated to  terrify  others.  The  allegations  may  be  that  at  a 
time  and  place  the  defendants,  (naming  them,)  'together  with 
divers  other  evil-disposed  persons,  to  the  number  of  ten  and 
more,  to  the  jurors  unknown,'  '  unlawfully,  riotously,  and 
routously  did  assemble  and  gather  together  to  disturb  the 
peace,'  etc.,  proceeding  to  set  forth  the  act  performed."  2 
Bish.  Crim.  Proc.,  §  992.  In  section  995  the  same  learned 
author,  speaking  of  the  purposes  of  an  asseml)lage,  says : 
"  Though,  in  law,  people  lawfully  assembled  may  incur  the 
guilt  of  riot,  still,  before  it  can  be  committed,  the  assemblage 
must  become  unlawful;  that  is,  the  riotous  purpose  must  be  en- 
tertained. Hence  the  unlawfulness  of  the  assemblage  must  in 
some  manner  appear  in  the  allegation."  In  Archbold's  Crimi- 
nal Pleading  &  Practice  (8th  Ed.),  Vol.  2,  with  Pomeroy's 
notes,  is  given  a  precedent  and  form  for  an  indictment  for  this 


BLACKVVELL  v.  STATE. 


585 


olT.'nse,  in  which  it  is  alleged  (omitting  the  formal  parts)  '*  that 
the   i)arties,  with  force  and  arms,  to  wit,  with  sticks,  staves, 
and  other  offensive  weapons,  unlawfully,  riotously,  routously, 
and  tumultuously  did  assemble  and  gather  together,  to  disturb 
the  peace,  etc.,  and  did  then  unlawfully,  riotously,  routously, 
and  tumultuously  make  a  great  noise,  riot,  tumult,  and  dis- 
turbance, to  the  great  terror  and  disturbance,"  etc,  "and, 
being  so  assembled  and  gathered  together  as  aforesaid,  they, 
the  said  parties,  (naming  them,)  and  said  other  evil-disposed 
persons  aforesaid,  did  then  unlaAvfully,  riotously,  routously, 
and  tumultuously  make  an  assault  upon  C.  D.,  etc.,  (stating 
the  act  done,  as  the  case  may   be,)  against  the  peace,"  etc. 
In  tlie  note  to  the  text  it  is  said :     "  The  indictment  must 
show  for  what  purpose  the  rioters  assembled,  that  the  court 
may  judge  whether  it  was  lawful  or  not.  and  it  must  state 
that  the  defendants  unlawfully  assembled;  for  a  riot  is  a  com- 
pound otTense.     There  must  be,  not  only  an  unlawful  act 
to  be  done,  but  an  unlawful  assembly  of  more  than  two  per- 
sons,    lieff.  V.  Gulston,  2  Ld.  Kaym.  1210;  Reg.  v.  Sole//,  2  Salk. 
503,  59-t."     See  form  in  Bishop's  Directions  and  Forms,  §  929. 
It  will  be  noticed  that  in  the  information,  as  set  out  above, 
it  is  alleged  that  the  defendant  did  then  and  there  unlawfully 
engage  in  a  riot  with  other  parties  named.     This  allegation  is 
simply  a  conclusion  of  law,  and  not  an  allegation  of  fact,  and 
does  not  supply  the  requisite  allegation,  that  the  parties  un- 
lawfully assembled  together;  nor  is  its  defect  cured  by  the 
addition  that  defendant  "  engaged  in  the  riot  with  the  other 
parties  named,  who  had  assembled  at  the  residence  of  Thomp- 
son."   This  is  also  a  conclusion  of  law  upon  the  part  of  the 
pleader.     We  are  of  opinion  that  the  indictment,  to  have  been 
sufficient,  should  have  alleged  that  the  defendant  and  others 
unlawfully  assembled,  and  after  that  it  should  have  stated  for 
what  purpose  they  assembled,  and  then  it  should  have  set  out 
the  unlawful  act  done  or  attempted  by  the  parties  after  the 
unlawful  assembly  together.    But,  again,  suppose  the  original 
purpose  for  which  the  parties  had  assembled  was  lawful,  then 
article  309  of  the  Penal  Code,  which  we  have  quoted  above, 
furnishes  the  rule  by  which  the  indictment,  to  be  valid,  should 
be  framed,  to  wit,  that  "  where  the  assemblage  was  at  first 
lawful,  and  the  persons  so  assembled  afterward  agreed  to 
join  in  the  commission  of  an  act  which  would  amount  to  a 


'J 


liir 


5SG 


AMERICAN  CRIMINAL  REPORTS. 


aj,  '' 

mi 


riot  if  it  had  been  the  original  purpose  of  tlie  meeting,  all 
those  who  do  not  retire  when  the  change  of  purpose  is  knDwii 
are  guilty  of  riot."  Article  311  provides  that  "  the  indictiiiont 
or  information  must  likewise  state  the  illegal  act  which  was 
the  ol)ject  of  the  meeting,  or  which  they  proceeded  to  do  if 
the  assemblage  was  originally  lawful."  In  such  a  case  the 
indictment  should  allege,  (1)  the  lawful  assemblage;  (2)  the 
persons  so  assembled  afterward  agreed  to  join  in  the  com- 
mission of  an  act,  (stating  the  act  constituting  the  riot,)  wliicli 
they  proceeded  to  do.  We  are  of  opinion  that  when  tested 
by  the  above  and  foregoing  rules  the  information  in  this  case 
is  fatally  defective,  and  does  not  charge  the  oifense  attempted 
to  be  charged,  to  wit,  a  riot.  Our  assistant  attorney  general 
has  confessed  error  on  the  part  of  the  state  upon  the  validitv 
of  the  information,  because  the  same  was  insufficient  in  the 
particulars  above  pointed  out.  Because  the  information  is 
fatally  defective,  the  judgment  is  reversed  and  the  prosecution 
dismissed. 
Judges  present  and  concurring. 

Note. — What  constitutes  evidence. — Where  the  evidence  shows  tliat  uw 
accused  and  another,  under  circumstances  indicating  a  previous  comliina- 
tion  to  use  violence,  committed  an  assault  upon  the  person  of  the  i)roseuut()r, 
such  assault  being  an  illegal  act  of  violenue  within  tha  meauiiig  ot  tlu' 
law,  the  evidence  supported  the  conviction  for  riot,  and  there  was  no  error 
in  denying  a  new  trial.  Rachels  v.  State,  51  Ga.  374.  This  case  diiriis 
from  that  of  Prince  v.  State,  30  Ga.  27,  in  which  it  appeared  that  the  two 
pereons  accused  were  not  acting  in  execution  of  a  common  intent,  hut 
were  engaged  in  a  fight  with  each  other.    Stafford  v.  State,  93  Ga.  207. 

On  trial  of  several  persons  charged  with  riot  and  assault  and  battery,  the 
assault  consisting  of  taking  the  prosecuting  witnt^s  to  a  woods  and  whip- 
ping him,  the  state  may  show  that  defendants  were  menjbers  of  a  secret 
society.    State  v.  Johnson,  (S.  C),  208.  E.  988. 

If  three  or  more  persons  have  assembled  for  a  lawful  purjwse,  but  while 
so  assembled  form  the  purpose  of  doing  an  unlawful  act  and  carry  out 
that  purpose  in  a  violent  or  tumultuous  manner,  they  are  guilty  of  riot. 
State  V.  Johnson,  89  Iowa  594. 

Where  two  or  more  persons,  acting  together  without  authority  of  law, 
use  or  threaten  either  force  or  violence  accompanied  by  immediate  powi'r 
of  execution,  and  thereby  disturb  the  public  peace,  they  are  guilty  of  riot., 
Sufficient  force  is  used  to  make  out  the  charge  of  riot,  if  their  requests  or 
orders  are  obeyed  through  a  reasonable  fear  of  injury  to  person  or  property. 
People  V.  O'Laughlin,  3  Utah  133;  4  Am.  Cr.  Rep.  543. 


CRAWFORD  V.  STATE. 


bb] 


oeting,  all 
3  is  known 
ndictinont 
which  was 
ocl  to  do  if 
I  caso   the 
so;  (2)  the 
n  the  coin- 
iot,)  which 
len  tested 
n  this  case 
itteini)te(l 
oy  ^••eneral 
he  validity 
ient  in  the 
niiation  is 
u'osecutiuii 


o\v8  that  liK- 
)us  conibina- 
le  jM-osoinitor. 
ailing  of  till' 
was  no  einir 
I  case  dKFfis 
that  the  two 
»  intent,  hut 
i  Oa.  207. 
I  battery,  the 
Is  and  whip- 
8  of  a  secret 

le,  but  while 
1(1  carry  out 
lilty  of  riot. 

rity  of  law, 
diate  fwwer 
uilty  of  riot., 
requests  or 
or  property. 


Crawford  v.  State. 
(90  Ga.  701.) 

•Robbery  :  What  coriRtitutea—Claim  of  right—Justifiable  homicide. 

1.  To  constitute  robbery  there  must  be  force  or  intimidation,  a'^iwrtntion 

without  the  consent  of  the  owner,  and  the  intent  to  steal.  A  person 
taking  property  from  another  under  a  bona  fide  claim  of  right,  and 
with  the  purpose  of  applying  it  to  the  payment  of  a  debt  from  the  latter 
to  himself,  is  not  guilty  of  robbery.  In  such  case  the  animus  furandi 
is  lacking.    It  is  otherwise  if  the  claim  of  right  is  a  mere  pretense. 

2.  To  constitute  robbery  it  is  unnecessary  that  the  taking  of  the  property 

should  be  directly  from  one's  i)erson;  it  is  suiRcient  if  it  is  taken  while 
in  his  possession  and  inmiediate  presence. 

3.  If  a  trespass  on  the  pereon  or  property  of  another  amounts  to  a  felony, 

the  killing  of  the  trespasser  will  be  justifiable  if  necessary  in  order  to 
prevent  it;  but  a  trespass  which  amounts  only  to  a  misdemeanor  will 
not  justify  the  killing.  Where,  therefore,  a  pereon  stopped  in  the  high- 
way the  wagon  which  another  was  driving,  and  took  from  it  certain 
meat  of  the  other,  for  the  declared  purpose  of  settling  a  debt  which  he 
claimed  was  due  him  by  the  owner,  and  while  proceeding  with  liis 
jiocketknife  to  cut  off  enough  of  the  meat  to  pay  the  debt,  the  owner 
sought  to  prevent  him,  and  the  trespasser  cut  at  liim  with  liis  knife  to 
prevent  interference,  and  the  owner  thereupon  seized  a  fence  rail — a 
deadly  weapon- -and  without  necessity  struck  the  trespasser  on  the 
head,  thereby  causing  death,  the  homicide  was  not  justifiable  if  the 
claim  of  debt  was  made  in  good  faith,  and  there  was  no  intent  to  steal, 
but  was  manslaughter.  If  the  blow  was  to  prevent  robliery,  and  was 
necessary  for  that  purpose,  the  homicide  was  justifiable. 

4.  It  is  questionable  whether  the  construction  placed  upon  section  4383  of 

the  Code  in  Pound  v.  State,  43  Oa.  127,  by  Lochrane,  C.  J.,  arguendo, 
is  correct  as  to  the  property  contemplated  being  only  such  as  is  at  or 
near  the  habitation;  but,  whether  so  or  not,  the  section  has  no  applica- 
tion where  the  injuiy  intended  is  not  a  felony,  and  the  property  at- 
tacked or  invaded  is  so  inconsiderable  that  the  injury  threatened  is  not 
serious,  but  slight,  such  as  severing  from  the  side  of  meat  a  small  part 
of  it. 

Error  from  Superior  Court,  Dougherty  County;  B.  B.  Bower, 
Judge. 

Warren  Crawford,  having  been  convicted  of  murder,  and 
his  motion  for  a  new  trial  having  been  overruled,  brings  error. 
Reversed. 

Jesse  W.  Walters,  by  Harrison  <&  Peeples,  for  plaintiff  in  error. 
IF.  N.  Spence,  -Sol.  Gen.,  and  J.  M.  Terrell^  Atty.  Gen.,  for 
the  State. 


f^' 


5SS 


AMERICAN  CRIMINAL  REPORTS. 


Simmons,  J.     Crawfonl  was  found   guilty  of   munler, 
motion  for  a  now  trial  was  ovorrulod,  and  he  excepted.     It 
appeared  from  the  evidence  that  while  the  defendant  was 
driving  his  wagon  along  the  highway,  tlio  deceased  drove  up 
behind  in  a  buggy,  whipping  his  horse  and  hallooing,  and  upon 
being  asked  by  another  person  present  whether  he  was  drunk, 
and  what  was  the  matter  with  him,  answered :    "  No,  liy  G-d; 
I  am  not  drunk.    "Warren  [the  defendant]  treated  me  wrong 
in  town."     The  defendant  and  the  deceased  (juarreled  for  a 
while,  but  finally  desisted;  and  when  they  got  to  a  certain 
point  in  the  road,  whore  the  deceased  stopped,  one  of  the  party 
proposed  to  the  defendant  that  they  should  drive  on  ahead,  so 
that  the  deceased  would  not  catch  up  with  them;  and  they  did 
so,  but  the  deceased  soon  overtook  them,  jumped  out  of  Y 
buggy,  ran  around  to  the  front  of  the  defendant's  wa< 
calling  to  him,  "  G-d  damn  it,  stop  your  mules,  and  take  n,^ 
things  out,"  and  caught  hold  of  the  lines  and  stop]H?d  the 
mules  him.«5elf.    The  "things"  referred  to  by  the  deceased 
were  articles  he  had  hired  the  defendant  to  carry  for  him  in 
the  wagon.     The  defendant  handed  them  to  the  deceased,  and 
the  latter,  after  putting  thera  down,  stepped  to  the  wagon,  and 
took  out  a  piece  of  meat  weighing  several  pounds,  which  be- 
longed to  the  defendant,  and  threw  it  on  the  ground  with  his 
own  things.     The  defendant  said,  "  By  G-d,  what  does  that 
mean?"    The  deceased  replied  that  he  was  going  to  have  a 
quarter's  worth  of  the  meat,  and  that  the  defendant  owed  him 
a  quarter.     The  defendant  said  he  did  not  have  the  money 
then,  but  would  pay  it  when  they  reached  his  house  if  the  de- 
ceased would  wait  until  they  got  there.    One  of  the  j)arty  said 
he  would  pay  the  money  for  the  defendant  himself,  but  the 
deceased  refused  to  wait,  or  to  take  the  money  offered  him, 
and  insisted  that  he  was  going  to  take  enough  of  the  defend- 
ant's meat  to  pay  himself.     The  defendant  begged  him  not  to 
do  so,  saying  that  he  had  to  carry  it  home  to  live  on,  and  that 
if  the  deceasef'  persisted  in  taking  it  he  would  hurt  him.    The 
deceased  paid  no  attention  to  the  protests  of  the  defendant, 
but  began  cutting  the  meat.    The  defendant  attempted  re- 
peatedly to  snatch  the  meat  away  from  him,  or  to  push  him 
off  from  it,  but  each  time  he  attempted  to  do  so  the  deceased 
"  raked  "  or  cut  at  him  with  his  knife,  and  began  again  to  cut 
the  meat.    After  the  defendant's  last  attempt  to  get  the  meat 


CRAWFOUD  V.  STATE. 


5bl) 


away  fiom  the  (loconseil  in  this  manner  had  ])rove(l  unsuc- 
cessful, he  stopped  hack,  and  jjicked  up  a  fence  rail  Iviny'  near, 
which  was  ahout  ten  feet  h)n<^  and  the  thickness  of  a  num's 
arm,  'Md  when  the  deceased  had  nearly  finished  cuttiuir  off  a 
piece  of  the  meat,  probably  about  two  pounds  and  a  half,  struck 
at  him,  sidewise,  hittin*?  him  on  the  head,  and  knocking  him 
away  from  the  meat.  lie  then  threw  down  the  rail,  ])icked 
u|>  the  meat,  and  put  it  back  in  the  wagon,  and  went  on  his 
way.  The  blow  cut  the  skin  and  made  a  wound  about  two 
inches  long  on  the  head  of  the  deceased,  but  it  did  not  appear 
that  the  skull  was  broken.  From  this  wound  he  died  the  next 
day. 

1-3.  The  theorv  of  the  defense  was  tliit  the  killinir  was 
justifiable,  because  done  to  prevent  a  robbery;  and  that,  if  the- 
deceased  was  not  attempting  a  robbery,  his  trespass  upon  the 
defendant  was  such  that  the  homicide,  if  not  justifiable,  was 
not  murder,  but  merely  manslaugliter.  In  defense  of  his  prop- 
erty "against  one  who  manifestly  intends,  by  violence  or  sur- 
prise, to  commit  a  felony "  thereon,  a  person  may  kill  the 
acrfjressor,  if  he  does  so  under  a  reasonable  belief  that  the  kill- 
ing  is  necessary  for  that  purpose.  Code,  §  4330;  1  East,  P.  C. 
271;  1  Bish.  Crim.  Law  (8th  Ed.),  §  853,  875.  To  constitute 
robbery  there  must  be  force  or  intimidation,  asportation  with- 
out the  consent  of  the  owner,  and  an  intent  to  steal.  It  is  un- 
necessary that  the  taking  sliall  be  directly  from  the  person  of 
the  owner;  it  is  sufficient  if  it  is  done  in  his  presence,  against 
his  will,  by  violence,  or  putting  him  in  fear.  Clemtnts  v. 
State,  S4:  Ga.  6G0;  2  Bish.  Crim.  Law  (Sth  Ed.),  §  1J7S.  It 
was  contended  on  the  part  of  the  state  that  in  this  case  the 
trespass  could  not  have  amounted  to  a  robbery,  because 
the  taking  was  under  a  claim  of  right,  with  the  purpose  of 
applying  the  property  taken  to  the  payment  of  a  debt  due 
from  the  defendant  to  the  deceased.  It  is  true,  such  a  taking, 
although  wrongful  and  violent,  would  not  be  robbery  if  the 
claim  of  right  was  in  good  faith,  and  the  taking  was  for  no 
other  purpose  than  to  satisfy  the  claim;  in  such  case  the  animus 
furamll  would  be  lacking.  But  it  would  be  otherwise  if  the 
claim  of  right  was  a  mere  pretext,  covering  an  intent  to  steal. 
2  Bish.  Crim.  Law  (Sth  Ed.),  §  1162a,  and  cases  cited;  2  Euss. 
Crimes,  111-114;  Long  v.  State,  12  Ga.  293  et  seq.  Although 
in  this  case  the  indications  of  such  an  intent  are  slight,  there 


'M 


590 


AMERICAN  CRIMINAL  REPORTS. 


were  circnmstances,  such  as  the  refusal  of  the  deceased  to 
wait  until  the}'  arrived  at  the  defendant's  house,  and  his  re- 
fusal to  take  the  amount  offered  him  in  payment  of  his  claim, 
and  perhaps  the  quantity  of  meat  the  deceased  was  taking, 
which  might  have  led  the  defendant  to  suppose  that  the  tak- 
ing was  not  so  much  to  secure  payment  of  the  amount  claimed 
as  it  was  to  deprive  him  of  his  property,  or  of  an  undue  quan- 
tity of  it,  and  therebv  obtain  a  fraudulent  advantage.  The 
trial  judge  ought,  therefore,  to  have  submitted  to  the  jury  the 
question  whether,  under  the  circumstances  in  evidence,  the 
defendant  had  reason  to  believe  that  the  claim  of  right  was 
made  and  acted  upon  in  good  faith,  or  was  merely  a  pretext, 
resorted  to  as  cover  for  a  fraudulent  intent. 

In  charging  upon  the  right  to  kill  in  defending  against  a 
robbery  the  court  instructed  the  jury  that  this  right  would 
not  exist  after  the  possession  of  the  property  had  passed 
from  the  owner  to  the  person  taking.  This  instruction,  under 
the  evidence  in  this  case,  was  improper  because  no  such  change 
of  possession  as  had  taken  place  would  cut  off  the  right  of  the 
defendant  to  protect  his  ])roperty  against  a  felonious  taking, 
the  property  being  still  in  his  immediate  presence,  and  the 
deceased  being  then  engaged  in  severing  that  part  of  the  meat 
which  he  had  said  it  was  his  intention  to  take,  and  in  resist- 
ing with  his  knife  the  efforts  of  the  defendant  to  ])revent  him 
from  carrying  out  his  intention.  The  taking  was  not  a  past, 
but  a  present  and  progressing,  injury;  and  if  the  defendant 
acted  under  a  reasonable  belief  that  the  purpose  of  the  tak- 
ing was  robbery  he  had  the  right  to  arrest  it  in  the  manner 
he  did,  although  there  may  have  been  already'  such  a  change  of 
possession  as  would  in  law  amount  to  a  robbery.  The  right 
of  the  owner  of  propert}'  to  defend  it  against  a  felonious  tak- 
ing, to  the  extent,  if  necessary,  of  killing  the  person  taking, 
does  not  end  at  the  moment  the  guilt  of  that  person  is  tech- 
nically complete.  It  extends  not  merely  to  the  prevention  of 
such  asportation  as  may  be  sufficient  to  render  the  person  tak- 
ing guilty  of  robbery,  and  which  may  be  effected  by  the  slight- 
est change  of  possession,  but  to  the  prevention  of  his  carrying 
off  the  property  which  he  has  thus  gotten  from  the  owner. 
The  object  of  the  law  being  to  allow  the  owner  to  protect  his 
property  against  the  robber,  it  would  be  unreasonable  to  hold 
that  at  the  moment  such  asportation  is  accomplished,  and  before 


CRAWFORD  V.  STATE. 


591 


the  robber  has  gotten  away  with  the  article  taken,  the  right 
of  the  owner  to  defend  his  property  is  at  end;  and  that,  where 
the  moment  before  he  could  lawfully  kill  in  defense  of  it,  he 
must  yield  if  the  slightest  change  of  possession  has  been  ef- 
fected, and  if  he  then  killed  the  robber  to  prevent  the  article 
from  being  carried  off,  would  be  guilty  of  murder.  The  effect 
of  the  instruction  as  to  the  change  of  possession  was  to  exclude 
the  defense  that  the  killing  was  done  to  prevent  a  robbery,  and 
although,  as  we  have  said,  the  evidence  to  sustain  thiy  theory 
is  slight,  the  jury  were  authorized  to  adopt  it,  and  it  might 
have  been  proper  to  do  so,  had  it  not  been  for  the  charge  re- 
ferred to.  If,  however,  the  evidence  does  not  sustain  this 
theory,  we  think  it  tends  rather  to  make  out  a  case  of  man- 
slaughter than  of  murder,  though  we  do  not  go  to  the  length 
of  upholding  the  position  taken  by  counsel  for  the  accused, 
that  a  homicide  to  prevent  a  mere  trespass,  not  amounting  to 
a  felony,  is  manslaughter  only.  Tliat  view  finds  no  sanction 
in  any  adjudication  of  this  court,  nor  in  the  authorities  gen- 
erally; at  least,  where,  as  in  this  case,  the  trespass  is  upon  prop- 
erty of  trifling  value,  not  at  the  habitation.  In  Hayes  v.  State, 
58  Ga.  40,  it  is  said  that  "to  intentionally  kill  with  a  deadly 
weapon  one  who  is  committing  a  trespass  upon  property  is 
generally  murder,  and  not  manslaughter,"  and  that  no  excep- 
tion to  this  general  rule  is  involved  where  the  trespass  is  "  the 
appropriation  and  removal  of  a  small  ]iiece  of  timber  of  tri- 
fling value."  And  it  is  explained  that  what  is  said  in  Monroe's 
Case,  5  Ga.  86,  relied  upon  by  counsel  here,  and  in  the  Keener 
Case^  18  Ga.  194,  to  the  effect  that  a  trespass  amounting  to  a 
misdemeanor  will  reduce  the  killing  to  manslaughter,  "  refers 
to  trespass  affecting  the  person,  and  not  to  trespass  affecting  the 
goods  only."  See,  also,  Whart.  Hom.,  §  414;  Kerr  Ilom.,  §§  12, 
13,  149,  185;  9  Amer.  &  Eng.  Enc.  Law,  586. 

But  while  a  trespass  of  this  kind  does  not  justify  a  killing, 
and  is  not  of  itself  sufficient  to  reduce  the  homicide  to  man- 
slaughter, yet,  if  the  circumstances  show  that  the  killing  was 
the  result  of  a  sudden,  violent  impulse  of  passion,  provoked  by 
the  trespass,  and  acted  upon  before  the  passion  had  time  to 
cool,  we  think  the  trespass  would  amount  to  such  a  reasonable 
provocation  as  in  law  would  justify  the  excitement  of  passion, 
and  thus  operate  to  reduce  the  offense  to  manslaughter.  Cer- 
tainly this  would  be  so  if,  as  in  this  case,  the  trespass  was  ac- 


•Ui 


m 


592 


AMERICAN  CRIMINAL  ftEPORTS. 


co-mpanied  with  assaults  against  the  person  of  the  OAvner  with 
a  knife,  in  resistance  to  his  efforts  to  prevent  the  trespasser 
from  carrying  away  his  property.  Some  of  the  authorities,  it 
is  true,  "a]>pear  to  lay  down  the  doctrine  that,  though  the 
passions  become  excited  in  the  mere  defense  of  property  other 
than  the  dwelling  house,  a  killing  with  a  deadly  weapon  used 
in  such  defense,  or  other  like  dangerous  means,  is  murder; " 
but  this  doctrine,  says  Mr.  Bishop,  (2  Crim.  Law  [7th  Ed.], 
§  706,  note,)  "  though  stated  many  times  in  the  books,  is  not 
sutticiently  founded  in  actual  adjudication  to  be  received  with- 
out further  examination;  for  surely,  although  a  man  is  not  so 
quickly  excited  by  an  attack  on  his  property  as  on  his  person, 
ancl  therefore  the  two  cases  are  not  precisely  on  the  same  foun- 
dation, yet,  since  he  has  the  right  to  defend  his  ])roperty  by 
all  means  short  of  such  as  produce  death,  if,  in  the  heat  of 
passion  arising  during  a  lawful  defense,  he  seizes  a  deadly 
weapon,  and  with  it  unfortunately  takes  the  aggressor's  life, 
every  principle  which  in  other  cases  dictjites  the  reduction  of 
the  crime  to  the  mitigated  form  requires  the  same  in  this  case." 
See,  also,  9  Amer.  &  Eng.  Enc.  Law,  586,  587;  1  Whart.  Crim. 
Law  (9th  Ed.),  §  462.  The  kinds  of  provocation  which  our 
Code,  in  defining  what  shall  constitute  voluntary  manslaughter, 
declares  insufficient  to  reduce  the  homicide  to  that  gratle,  are 
*'  words,  threats,  menaces,  or  contemptuous  gestures  "  (section 
4325);  but  it  does  not  exclude  from  among  the  reasonable 
grounds  of  provocation  a  trespass  upon  ]»roperty,  accompanied 
with  such  hostile  demonstrations  against  the  person  of  the 
owner  as  were  shown  to  have  taken  jjiaee  in  this  case.  The 
test  laid  down  by  this  section  by  which  to  determine  whether 
the  offense  shall  be  reduced  to  manslaughter  is  that  "  tiic  kill- 
ing must  be  the  result  of  that  sudden,  violent  impulse  of  pas- 
sion sui)posed  to  be  irresistible,"  and  that "  there  must  be  some 
actual  assault  upon  the  person  killing,  or  an  attempt  by  the 
|)erson  killed  to  commit  a  serious  personal  injury  on  tlie  per- 
son killing,  or  other  equivalent  circumstances  to  justify  the 
excitement  of  passion,  and  to  exclude  all  ideas  of  deliberation 
or  malice,  either  express  or  implied." 

In  the  present  case,  we  think  the  circumstances  conform  to 
this  test.  We  think  they  may  properly  be  classed  among 
those  circumstances  which  justify  the  excitement  of  passion, 
and  exclude  the  idea  of  deliberation  or  malice.    The  deceased, 


CRA.WFORD  V.  STATE. 


593 


as  we  have  seen,  was  the  aggressor,  having  provoked  the  first 
quarrel,  and  having  afterward  followed  up  the  defendant  when 
the  latter  was  seeking  to  get  away  from  him,  and  renewed  the 
difficulty  by  taking  the  defendant's  meat,  and  proceeding,  de- 
spite his  remonstrances,  to  cut  it  up,  with  the  avowed  intention 
of  carrying  off  a  part  of  it,  at  the  same  time  adding  to  the 
provocation  by  making  repeated  assaults  against  the  defendant 
with  a  knife,  while  he  was  seeking  to  get  back  his  property; 
and  this,  notwithstanding  the  money  claimed  to  be  due  from 
the  defendant  had  then  and  there  been  offered  to  the  deceased. 
The  use  of  a  weapon  by  the  defendant  was  evidently  an  after- 
thought, and  was  resorted  to  only  after  his  repeated  efforts  to 
get  back  his  property  without  such  means  had  proved  unavail- 
ing, and  after  he  had  been  wrought  up  by  continued  provo- 
cation.    In   this  emergency,  and  acting  in  the   heat  of  the 
moment,  he  picked  up  the  rail — a  chance  weapon,  probably  the 
first  thing  he  saw  lying  at  hand — and  struck  at  the  aggressor 
with  it,  hitting  sidewise,  and  apparently,  as  a  witness  testified, 
for  the  purpose  of  knocking  him  away  from  the  meat,  rather 
than  of  taking  his  life.     He  struck  but  one  blow  and  made  no 
further  demonstration  against  the  deceased,  but  at  once  threw 
down  the  rail,  picked  up  his  meat  and  went  on  his  way.    There 
is  no  indication  of  deliberation  or  premeditation  on  the  part  of 
the  defendant.     There  is  no  showing  of  express  malice,  and  the 
circumstances  tend  strongly  to  rebut  the  implication  of  malice 
winch  arises  from  the  dangerous  character  of  the  weapon.   See 
I2ai/  V.  State,  15  Ga.  223,  24r4,  where  it  is  said :    "  The  fact  that 
a  prisoner  had  accidentally  and  hastily  taken  up  a  board,  with 
Aviiich,  in  a  conflict,  he  inflicted  blows  that  produced  death, 
and  had  not  provided  the  same  or  any  other  deadly  instrument, 
l)eforehand,  is  a  circumstance  which  does  not  favor  the  con- 
clusion that  malice  should  be  implied,  because  a  weapon  was 
used  likely  to  produce  death."     It  is  likely  that  if  the  law  of 
manslaugliter  had  been  explained  to  the  jury  in  such  manner 
as  to  enable  them  to  understand  its  ap})lication  to  tha  state  of 
facts  before  them,  they  would  not  have  found  the  defendant 
"uilty  of  murder.     The  court,  it  is  true,  gave  in  charge  the  sec- 
tions of  the  code  defining  manslaughter,  but  did  not  add  such 
explanations  as  would  have  been  proper  to  aid  the  jury  in  ap- 
plving  the  law  as  Liierein  stated,  to  the  circumstances  of  this 
case.     Upon  the  whole,  we  are  satisfied,  after  a  careful  review 
38 


'■^ 


;ii 


594 


AMERICAN  CRIMINAL  REPORTS. 


of  the   record,  that  the  ends  of  justice  will  be  subserved  by 
awarding  a  new  trial. 

4.  It  is  complained  that  the  court  erred  in  charging  that 
section  4332  of  the  Code,  which  declares  that  "  if,  after  persua- 
sion, remonstrance,  or  other  gentle  means  used,  a  forcible  at- 
tack and  invasion  on  the  property  or  habitation  of  another  can 
not  be  prevented,  it  shall  be  justifiable  homicide  to  kill  the 
person  so  forcibly  attacking  and  invading,"  etc.,  does  not  ap- 
ply to  the  defense  of  property  which  is  not  at  the  habitation. 
It  is  questionable  whether  this  construction  is  correct,  although 
it  is  in  accord  with  the  view  expressed  by  Lochrane,  C.  J.,  in 
the  Pound  Case,  43  Ga.  89.  What  was  there  said  on  this  sub- 
ject, however,  was  unnecessary  to  the  adjudication  in  that 
case,  and  is  to  be  taken  as  dictitrn  merely.  But  whether  this 
construction  is  correct  or  not,  the  section  quoted  does  not  ap- 
ply to  every  attack  or  invasion  on  property.  The  concluding 
part  of  the  section  sa3's  it  must  appear  "tiiat  a  serious  injury 
was  intended,  or  might  accrue,  to  the  person,  property,  or  fam- 
ily of  the  ])erson  killing."  It  has  no  application  where  the 
property  attacked  or  invaded  is  so  inconsiderable  that  the  in- 
jury intended  is  not  serious,  but  slight,  such  as  severing  from 
a  side  of  meat  a  small  part  of  it;  certainly  not  where  the  in- 
jury is  not  ])roceeding  to  a  felony.  It  would  be  out  of  har- 
mony* with  the  general  spirit  of  the  law  of  homicide,  which 
should  govern  in  the  construction  of  this  section  of  the  code,  to 
treat  the  section  as  authorizing  the  taking  of  human  life  for  a 
trivial  injury  to  property,  not  involving  a  felony.  It  could 
not  have  been  the  intention  of  the  codiliers  or  of  the  lemsla- 
ture  in  adopting  the  ])enal  code,  to  make  such  a  radical  dejjart- 
ure  from  the  established  law  on  this  subject  as  it  stood  before 
the  adoption  of  the  code,  and  the  section  has  never  been  so 
understood  by  this  court.  If  the  deceased  in  this  case  intended 
a  felony,  and  if  this  section  was  aiiplicable,  the  defendant  lost 
nothing  from  the  fact  that  the  court  treated  it  as  inapplicable, 
the  law  as  to  the  defense  of  property  against  a  felony  being 
given  in  charge,  as  laid  down  in  section  4330  of  the  Code. 
Judgment  reversed. 


NoTE.--U7ia<  mnstitutes— Indictment — Allegation  of  ownership.— An  in- 
dictment is  obviously  defective  in  failing  to  allege  the  ownership  of  the 
money  charged  to  have  been  taken.  That  allegation  is  found  in  all  tlie 
common  law  precedents  of  indictments  for  robbery.    8  Greenl.  Ev. ,  g  2:23, 


CRAWFORD  V.  STATE. 


595 


note  2;  2  Bish.  Crim.  Proc,  §  1003.     "  Robbery  is  the  felonious  and  violent 
taking  of  any  goods,  money  or  other  valuable  thing  from  the  person  of  an- 
other, by  force  or  intimidation.    The  manner  of  the  force  or  the  mode  of 
intimidation  is  not  material,  further  than  it  may  show  the  intent  of  the 
offender."    Mansf.   Dig.,  §  1509.    This  statutory  definition  is  an  affirmance 
or  adoption  of  the  common  law  offense  of  robbery,  and  the  indictment  must, 
therefore,  allege  all  the  facts  necessary  to  constitute  the  offense  at  common 
law.     One  of  these  facts,  according  to  all  the  autliorities,  is  that  the  property 
taken  belonged  to  the  person  robbed,  or  to  a  third  person.    Com.  v.  Clifford, 
8  Gush.  21.');  State  v.  Absence,  4  Port.  (Ala.)  397;  Uish.  Crim.  Law,  §§  788^ 
789, 1156,  note;  Id.,  §  1159;  2  Bis'a.  Crim.  Proc,  gj?  1002, 1000;  3  Greeiil.  Ev.', 
§224;  Haley  v.  State,  49  Ark.  151;  Scott  v.  State,  i2  Ark.  73;  State  v.  All 
Lot,  5  Nev.  99;  Sinedty  v.   State,  30  Tex.  214;  People  v.  Vice,  21  Cal.  344; 
Stegar  v.  State,  99  Am.  Dec.  472,  and  notes.    That  the  indictment  pursues 
substantially  the  language  of  the  statute  is  not  always  sufficient,  even  where 
the  offense  charged  was  created  by  the  statute.     State  v.  Graham,  38  Ark. 
519.     "  Where  the  offense,"  said  Judge  Smith,  "  is  jmrely  statutory,  having 
no  relation  to  the  common  law,  it  is  generally  sufficient  to  follow  the  lan- 
guage of  the  statute."    State  v.  H'itt,  39  Ark.  216.    But  in  the  enactment  of 
such  statutes  it  was  plainly  the  intention  of  the  legislature  not  to  create  an 
offense,  but  to  provide  for  the  punislunent  of  one  existing  at  the  conmion 
law,  and  of  that  offense  matter  of  ownership  of  property  taken  is  an  essen- 
tial element,  althougii  the  statute  does  not  expressly  mention  it.   Com.  v.  Clif- 
ford, 8  Cush.  215.     In  the  case  just  cite<l,  the  indictment  was  ujwn  such  a 
statute,  and  the  supreme  court  of  Massachusetts  held  it  bad  because  it 
failed  to  allege  the  ownership  of  the  property.    The  same  ruling  was  made 
in  People  i\  Vice,  21  Cal.  344,  and  in  other  cases  cited  above.     Mr.  Bishop 
says  that   in  robbery    the  ownership  of  the  property  "  must  be  alleged, 
*    *    *    precisely  as  in   farceny."    2  Crim.  Proc,  §  1006.    I  presume  it 
would  not  be  ct)ntended  tiiat  an  indictment  for  larceny  would  be  good  if  it 
contained  no  allegation  of  either  a  general  or  special  ownership.    2  Bish. 
Crim.  Law,  §  789;  2  Bish.  Crim.  Proc,  t<;5  718,  720.    See,  also,  Scott  v.  State, 
42  Ark.  73;  BlankeuHhip  v.  State,  .55  Ark.  244. 

Where  a  pers(m  was  robbed  by  one  highw.iyman,  while  defendant  held  a 
pistol  upon  him,  the  act  of  robbery  was  as  nuich  defendant's  as  if  the  prop- 
erty had  been  taken  by  him.    State  v.  Stewart  (Mo.),  29  S.  W.  980. 

Robbery  at  common  law  was  defined  as  "  Larceny,  committed  by  violence, 
from  the  person  of  one  put  in  fear."  2  Bish.  Cr.  Law,  1156.  By  statute  it  is 
generally  provided  that,  "  If  any  person  shall  forcibly  and  by  violence  or 
by  putting  in  fear,  take  from  the  person  of  another  any  money  or  personal 
property  of  any  value  whatever  with  the  intent  to  rob  or  steal,  every  person 
so  offending  shall  be  deemed  guilty  of  robbery  and  uix)n  conviction  thereof 
shall  be  imprisoned  in  the  penitentiary  not  more  than  fifteen  nor  less  than 
three  years."  The  takinjr,  according  to  such  definition,  must  be  from  the 
person,  since  the  crime  of  rol)bery  is  an  offense  as  well  against  the  person  as 
against  projierty.  It  is,  however,  not  essential  to  a  conviction  for  the  crime 
named  that  the  property  be  taken  from  the  body  of  the  person  wronged. 
It  is  sufficient  if  taken  from  his  personal  jiresence  or  personal  protection. 
2  Bish.  Cr.  Law,  1177,  1178;  U.  S.  v.  Jonen,  3  Wash.  C.  C.  209,  Fed.  Cas.  No. 
15,494;  Clemeuts  r.  State,  84  Ga.  600;  8  Am.  Cr.  Rep.  692;  State  v.  Calhoun, 
72  Iowa  432.     In  the  last  named  case,  which  was  under  a  statute,  the  pris- 


f; 


H-^IM 


.1   {' 


596 


AMERICAN  CRIMINAL  REPORTS. 


oner  wns  shown  to  have  bound  the  prosecutrix,  and  by  putting  her  in  fear 
extorted  information  reHpectinp  tlie  phice  where  her  money  and  other  per- 
sonal property  was  kept.  Leaving  lier  bound,  he  went  to  the  place  desig- 
nated by  her,  in  another  room  of  the  same  Iiouse,  and  took  the  property 
named  in  the  indictment.  In  the  opinion  the  court,  by  Beck,  J.,  uses 
this  language:  "  The  thought  expressed  by  the  language  of  the  statute  is 
that  the  property  must  be  so  in  the  possession  or  under  the  control  of  the 
person  robbed,  that  violence  or  putting  in  fear,  was  the  means  used  by  the 
robber  to  take  it."  And  in  Clementa  v.  State  the  prisoner,  by  threats  of 
violence,  detained  the  prosecutor  in  an  outhouse  while  a  confederate  entered 
his  dwelling,  fifteen  paces  distant,  and  took  therefrom  the  property  described, 
and  the  taking  was  lield  to  be  in  the  presence  of  the  prosecutor  within  the 
meaning  of  the  statute  defining  robbery. 

Tie  violence  which  is  essential  to  the  crime  of  robbery  must  be  con- 
comitant with  the  taking  of  the  property  from  the  person  of  another. 
Hannan  v.  State,  43  Ohio  St.  376;  5  Am.  Cr.  Rep.  625. 


People  v.  Clark. 


(106  Cal.  33.) 
Robbery:    Evidence— Identity  of  Defendant. 

1.  The  refusal  of  the  court  to  certify,  on  the  stenographer's  transcript  of 

certain  oral  instructions,  that  they  were  given,  so  as  to  make  them  a 
part  of  tlie  record,  is  not  ground  for  reversal,  where  such  instructions 
are  made  a  part  of  the  record  by  bill  of  exceptions. 

2.  Where  the  prosecuting  witness  at  the  time  of  the  robbery  identified  de- 

fendant as  a  person  with  whom  he  had  liad  a  conversation  in  the  pres- 
ence of  a  third  person,  the  substance  of  the  converaation  is  admissible 
to  enable  such  third  pei-son  to  identify  defendant  as  the  pei-son  with 
whom  the  convereation  was  had. 

3.  Where,  in  such  a  case,  the  prosecuting  witness  positively  identified  de- 

fendant as  one  of  the  active  participants  in  the  robbery,  the  fact  that 
the  witness  was  allowed  to  state  defendant's  name,  as  given  him  sub- 
sequently by  the  person  in  whose  presence  the  converaation  was  had,  is 
not  ground  for  reversal. 

4.  The  state  may  show  why  a  person  who  was  present  at  a  roblwry  had 

gone  away,  as  otherwise  he  should  have  been  called  as  a  witness. 

5.  When  defendant,  in  accounting,  as  a  witness,  for  his  time  on  the  night 

of  the  robbery,  stated  that  he  went  to  a  certain  part  of  the  town,  he 
could  be  proi>erly  cross-examined  as  to  what  he  and  his  companion 
were  doing  there. 

6.  On  a  prosecution  for  robbery,  the  fart  that  the  property  alleged  to  have 

been  stolen  did  not  in  its  entirety  belong  to  the  person  named  in  the  in- 
dictment as  owner,  is  n'^  v  such  a  variance  as  to  prevent  a  conviction. 


Commissioners'  decision.     In  banc. 


PEOPLE  V.  CLARK. 


597 


er  in  fear 

other  per- 

ace  dt'sif;- 

property 

C,    J.,    U8t'8 

statute  is 

rol  of  the 
sed  by  the 

threats  of 
ite  entered 

described, 
within  the 

1st  be  con- 
)f  another. 


transcript  of 
lalte  them  a 
instructions 

dentified  de- 
i  in  the  pres- 
3  admissible 
person  with 

identified  de- 
tl»e  fact  that 
en  liim  sub- 
n  wiis  liad,  is 

rol)bery  had 
I'itness. 
!  on  tlie  nij?ht 
the  town,  lie 
is  companion 

legetl  to  have 
ned  in  tlie  in- 
con  viction. 


Appcnl  from  Superior  Court,  Tulare  County;  Wheaton  A. 
Gray,  Judge. 

R.  P.  Clark  was  convicted  of  robbery,  and  appeals. 
Affirmed. 

Lamherson  f§  M'uUJeeqf  and  C.  L.  Russell,  for  appellant. 

Wm.  II.  11.  Hart,  Attornri/- Gene  pal,  Chas.  //.  Jackson,  Bep- 
ubj  Attomey-Geiici'al^wxA  Morns  E.  Poioei',  District  Attomey, 
for  the  People. 

IIaynes,  C.  Appellant  was  convicted  of  the  crime  of  rob- 
bary,  and  was  sentenced  to  imprisonment  in  the  state* s  prison 
for  the  term  of  twenty  years;  and  this  appeal  is  from  the  judg- 
ment, and  from  an  order  denying  defendant's  motion  for  a  new 
trial,  and  also  from  an  order  made  after  judgment.  This  lat- 
ter order  will  be  first  noticed. 

Several  instructions  were  requested  to  be  given  to  the  jury 
by  the  prosecution  and  the  defendant,  respectively,  upon  each 
of  which  the  action  of  the  court,  whether  given,  refused,  or 
modified,  was  duly  indorsed.     In  addition,  the  court  gave  sev- 
eral oral  instructions  of  its  own  motion,  and  these  wore  taken 
down  by  the  reporter,  and  afterward  written  out,  but  the  fact 
that  they  were  given  was  not  certified  thereon  by  the  court, 
so  as  to  make  them  a  part  of  the  record.     People  v.  January, 
77  Cal.  171);  19  Pac.  25S;  People  v.  Ah  Lee  Boon,  97  Cal.  171; 
31  Pac.  933;  Pen,  Code,  §  1170.    Afterward   the  defendant 
moved  the  court  to  certify  these  oral  instructions  so  as  to  make 
them  a  part  of  the  record,  and  the  order  denying  this  motion  is 
the  order  above  mentioned,  from  which  an  appeal  is  taken. 
The  record  does  not  disclose  any  ground  for  the  refusal  of  the 
court  to  indorse  upon  such  instructions  the  fact  that  they  were 
given  to  the  jury,  nor  can  we  conceive  of  any  sufficient  ground 
for  such  refusal.     But,  conceding  that  defendant's  motion  in 
that  behalf  should  have  ha^n  granted,  it  is  not  perceived  that 
the  defendant  was  prejudiced,  or  lost  any  substantial  right. 
It  is  said  by  counsel  for  appellant  that  if  the  motion  had  been 
granted,  and  these  instructions  thus  made  part  of  the  record, 
that  an  appeal  could  have  been  taken  upon  the  judgment  roll 
without  a  statement  or  bill  of  exceptions.     It  does  not  appear 
that  he  desired  to  appeal  upon  the  judgment  roll  or  record  with- 
out a  bill  of  exceptions.    He  had  made  a  motion  for  a  new  trial, 


jiLiiUiilki! 


if 


598 


AMERICAN  CRIMINAL  REPORTS. 


11        I 


and  more  than  three  months  before  had  f^Wen  notice  of  ai)|ieal 
f  I'om  the  order  denying  a  now  trial.  In  any  event,  the  instruc- 
tions in  question  are  now  in  the  record  by  bill  of  exceptions, 
and  are  as  available  to  the  defendant  as  though  his  motion  had 
been  granted. 

The  question  put  to  the  witness  Ah  Jip,  as  to  what  the  de- 
fendant said  to  him  some  days  before  the  robbery,  was  proper 
for  the  purpose  of  identification.     At  the  time  of  the  robbery 
the  witness  identified  one  of  the  robbers  as  a  man  with  whom 
he  had  had  a  conversation  at  a  certain  place  in  presence  of  an- 
other, but  he  did  not  know  the  name  of  the  man  that  he  thus 
identified.     Jauchius,  in  whose  presence  the  conversation  was 
had,  was  thus  enabled  to  say  that  the  defendant  was  the  per- 
son referred  to  by  Ah  Jip.     The  next  morning  after  the  rob- 
bery Ah  Jip  went  to  Jauchius  to  learn  the  name  of  the  person 
he  identified  as  one  of  the  robbers,  and  was  permitted  to  state 
the  conversation  had  with  him,  which  was,  in  substance,  that 
Ah  Jip  asked  the  name  of  the  man  he  had  talked  with,  and 
was  told  that  it  was  R.  P.  Clark.     It  is  contended  that  this 
conversation,  not  in  the  presence  of  the  tlofendant,  was  heaisa}' 
and  inadmissible.     Apjiellant  cites  a  very  la^ge  number  of  cases 
in  support  of  the  general  proposition  that  statements  made  by 
third  persons  after  the  commission  of  the  offense,  and  not  in 
the  presence  or  hearing  of   the  defendant,  are  inadmissible. 
These  cases  principally  discuss  the  admissibility  of  declarations 
as  part  of  the  res  ijestce.     But  here  no  statement  or  declaration 
touching  the  commission  of  the  offense  was  made;  and,  if  it  be 
conceded  that  it  was  immaterial  how  or  from  whom  Ah  Jip 
obtained  the  name  of  the  defendant,  the  error  was  harmless, 
and  could  not  possibly  justify  a  reversal  of  the  judgment.     If 
Ah  Jip  had  detailed  the  circumstance  of  the  commission  of  the 
offense,  and  Jauchius  had  testified  to  these  statements,  it  is 
obvious  that  a  different  question  would  be  involved,  and  in  such 
case  the  authorities  cited  by  ai)pellant  would  apj)ly.     Or,  had 
the  statement  been  used  or  designed  to  be  used  to  fix  the  iden- 
tity of  defendant  as  the  perpetrator  of  the  crime,  the  injury  of 
the  ruling  would  have  been  manifest.     But  it  served  no  such 
purpose,  since  Ah  Jip  positively  identified  the  defendant  at  the 
trial  as  one  of  the  active  participants  in  the  robbery. 

Ah  Kong,  a  Chinaman,  who  was  present  at  the  time  of  the 
robbery,  and  who  did  not  understand  what  was  said  on  that 


i£  Hi 

1 

:  appeal 
instruc- 
eptions, 
;ion  had 

the  de- 
}  proper 
robbery 
h  whom 
!e  of  an- 

he  thus 
tion  Avas 

the  per- 

the  rob- 
e  person 

to  state 
ice,  that 
pith,  and 

hat  this 

heaisaj' 
r  of  cases 

made  by 
id  not  in 
Imissibie. 
sUirations 
chiration 
J,  if  it  be 
n  Ah  Jip 
liarmless, 
nent.     If 
on  of  the 
?nts,  it  is 
id  in  such 
Or,  had 

the  iden- 
I  injury  of 
i  no  such 
ant  at  the 

me  of  the 
d  on  that 


PEOPLE  V.  CLARK. 


599 


occasion  in  En«j^lish,  was  asked  the  following  question :  "  Could 
you  understand  by  the  way  the  men  moved  their  revolvers  and 
the  way  they  pointed  with  their  hands  tluit  they  wanted  you 
to  go  out?"  The  objection  was  that  it  called  for  the  under- 
stantling  of  the  witness.  The  witness  was  permitted  to  an- 
'swer,  and  said :  "  Yes,  sir;  they  pointed  their  revolvers  at  us, 
and  pointed  toward  the  door."  The  witness  not  only  fave  his 
understanding,  but  the  facts  upon  which  it  was  based.  The 
question  was  not  skillfully  framed,  but  the  answer  was  unob- 
jectionable. 

It  is  also  contended  that  the  court  erred  in  permittino-  Ah 
Leon  to  testify  as  to  wiiy  Ah  Wi  went  to  San  Francisco.  Ah 
Wi  was  present  at  the  time  of  the  robbery,  and  was  not  pres- 
ent at  the  trial.  It  was  competent  to  show  where  he  was  and 
why  he  was  absent,  as  otherwise  he  should  have  been  called 
as  a  witness.  Whether  the  question  ])ut  to  Dung  Chung  was 
leading  or  not  need  not  bo  considered,  as  the  answer  was  fa- 
vorable to  the  defendant. 

The  robbery  was  committed  on  the  night  of  September  8, 
1893,  at  a  house  occu])ied  by  eleven  (-hinumer,  who  were  part- 
ners and  tenants  cultivating  lan<l  belonging  to  Joseph  La 
Marclie,  who  lived  about  half  a  mile  from  the  house  occupied 
by  the  Chinamen.     On  the  morning  of  the  8th,  Mr.  Faust  and 
another  man  called  at  the  house  of  La  Marche,  and  Mrs.  La 
Alarche  was  called  by  the  prosecution,  and  stated  that  she  had 
a  conversation  with  Faust  and  his  companion  in  relation  to  the 
garden  cultivated  by  the  Chinamen.     She  was  then  asked  to 
state  the  conversation,  and  to  this  the  defendant  objected.     In 
a  colloquy  between  counsel  for  the  people  and  the  court,  which 
is  incorporated  in  the  bill  of  exce))tions,  it  appears  the  defense 
liad  been  permitted  to  show  upon  cross-e.xamination  that  these 
Chinamen  owed  rent  at  the  time  of  the  robbery  amounting  to 
$300  or  $s4rOO,  and  tliat  the  suggestion  had  been  made  that  the 
pretended  robbery  was  a  job  put  up  with  other  Chinamen  so 
that  they  could  represent  to  La  JMarche  that  they  had  been 
robbed  and  could  not  ))ay  the  rent.    The  testimony  of  the 
Chinamen  who  were  robbed  also  showed  that  four  men  were 
concerned  in  the  robbery,  three  of  wliom  came  into  the  house, 
the  fourth  staying  outside  at  some  little  distance,  and  who  was 
not  distinctly  seen.     The  defendant,  one  of  the  three  who 
came  in,  was  not  masked.     The  other  two  were  masked,  and 


:ti:i  ill 


f.-j  [ 


ili!) 


■II 


I      ! 


■It 


m 


!l 


600 


AMERICAN  CRIMINAL  REPORTS. 


»-    !  i   #1 


;■?■  i 


'•■]  ■■   I 


P: 


as  to  tliera  several  of  the  Chinamen  testified  they  could  not 
tell  whether  they  were  Chinamen  or  negroes  or  white  men. 
It  was  expressly  stated  by  counsel  for  the  prosecution  that 
they  had  no  testimony  which  would  bring  the  conversation  of 
those  men  with  Airs.  La  ISIarche  to  the  defendant ;  that  his 
object  was  to  meet  the  argument  that  only  the  Chinamen 
knew  there  was  rent  due  and  unpaid,  "and  let  it  go  to  tlie 
jury  as  to  who  these  other  white  men  were;"  that  the  court 
had  ruled  that  the  circumstance  that  these  Chinamen  were 
owing  a  large  sum  of  money  for  rent  siiould  be  shown,  and 
that  he  desired  to  show  that  white  men  also  knew  the  fact. 
Tlie  objection  of  defendant  was  thereupon  overruled,  and  the 
witness  said  that,  after  informing  them  that  Mr.  La  Warche 
had  gone  to  Tulare  with  a  load  of  wheat,  they  said  they  came 
to  see  about  making  a  bargain  to  rent  the  orchard ;  that  she 
told  them  it  was  rented  for  three  or  four  years ;  that  they  in- 
quired how  many  acres  were  in  vegetables,  to  which  she  replied 
she  did  not  know,  that  they  could  tell  better  b}"^  going  to  see 
it.  They  then  wanted  to  know  how  much  rent  was  paid,  and 
she  told  them  8^00  a  year ;  "  that  one  ))ay ment  had  been  made, 
but  before  anybody  got  that  orchard  the  other  pa^'ment  would 
have  to  be  paid  either  by  the  Chinese  or  the  one  tiuit  bought 
them  out;"  and,  after  telling  them  where  they  could  find  her 
husband  in  Tulare,  they  asked  when  the  last  payment  became 
due,  and  she  told  them  it  would  be  due  the  1st  of  October. 
They  then  left.  Mr.  Faust  and  Mr.  Lazenby,  who  was  with 
him  at  the  time  of  the  conversation  with  Mrs.  La  Marche,  above 
stated,  were  called  by  the  defendant,  and  explained  their  visit 
to  the  house  of  ]Mr.  La  Marche  by  saying  that  Lazenby  desired 
to  secure  the  land  then  occupied  by  the  Chinamen  for  the  pur- 
pose of  cultivation,  but,  finding  the  rent  to  be  high,  concluded 
to  make  no  further  effort  to  obtain  it,  and  they  both  testified 
that  they  did  not  mention  the  visit,  or  anything  in  connection 
with  it,  to  the  defendant  or  any  one  until  after  the  arrest  of  de- 
fendant. I  think  it  immaterial  what  others  than  the  defend- 
ant had  learned,  or  how  they  learned,  that  a  payment  of  rent 
was  about  to  become  duo  from  the  Chinamen,  unless  such 
knowledge  was  brought  home  to  the  defendant  prior  to  the 
robbery,  an;l  for  that  reason  the  testimony  should  have  boon 
excluded ;  and  the  question  now  to  be  determined  is  whether 


!';;•  I'l! 


PEOPLE  V.  CLARK. 


COl 


its  admission  was  such  an  error  as  rociuires  a  reversal  of  tlie 
judgment  and  a  new  trial. 

Section  125S  of  the  Penal  Code,  is  as  follows:  "  After  lioar- 
in«j  the  appeal,  the  court  must  give  jiid;,nnont  without  royaid 
to  technical  errors  or  defects,  or  to  exceptions,  whicli  do^not 
atfect   the  substantial  rights  of  the  i)arties."    In  I\(n,lr  ,<. 
\Brot/t(>t-ton,  ^7  Cal  ass,  iOi,  it  was  said:  "That  a  technical 
error  has  intervened  at  the  trial  is  therefore  not  of  itself  enou'-li 
to  warrant  a  reversal.     The  prisoners  must  go  fuitlier, and  Tif- 
lirmatively  show  in  some  way  that  tlieir  substantial  riglita 
have  been  injuriously  affected  by  tiieerrtir  com  plained  of.   Tho 
burden  is  upon  them  to  do  so."    This  case  was  cited  appiov- 
ingly  in  People  v.  Nelmn,  5(}  Cal.  at  ])age  82,  and  in  l\(>pl,'  v. 
Barnhiirt,  5t>  Cal.  at  page  384.     In  the  lirotherton  case,  m^.m^ 
the  defendant  offered  in  evidence  the  testimony  of  one  How- 
ard, taken  upon  a  former  trial,  and  it  was  excluded.    Tho 
record  did  not  set  out  the  testimony  offered,  nor  state  its  sub- 
stance, nor  was  its  materiality  shown,  and  the  language  used 
by  the  court  must  be  read  in  the  light  of  those  facts.     In  l\;o- 
plev.  Nelson  and  People  v.  Bat'nhart,  mipra,  the  (piostions 
arose  upon  instructions  to  the  jury,  and  in  the  case  last  men- 
tioned the  error  was  favorable  to  the  defendant.     Here,  how- 
ever, the  evidence  was  admitted  against  the  defendant's  objec- 
tion, and  was  heard  by  the  jury,  and  is  set  out  in  tlie  record. 
Tho  defendant  couUl  not  show  that  he  was  prejudiced  otherwise 
than  by  tho  record,  and  that  is  before  the  court.    The  visit  of 
Faust  and  Lazenby  to  tho  ranch  was  upon  the  same  day  the 
robbery  occurred.     If  the  facts  thus  learned  had  been  commu- 
nicated to  the  defendant  that  day,  the  testimony  would  have 
tended  to  strengthen  the  case  against  him;  and,  if  it  had  been 
left  doubtful  whether  said  facts  were  or  were  not  communi- 
cated to  the  defendant,  we  should  not  hesitate  to  say  that  the 
error  was  prejudicial.     But  the  counsel  for  the  people  not  only 
disclaimed  in  advance  any  effort  to  connect  the  defendant  with 
the  offered  testimony,  but  Faust  and  Lazenby,  whose  credibil- 
ity is  not  attacked,  both  testified  that  they  did  not  communi- 
cate anything  the^^  learned  to  the  defendant,  nor  to  any  one, 
until  after  the  robbery.     Tiiat  a  robbery  was  committed  at  the 
time  and  place  charged  in  the  information  is  clear  beyond 
question.    Whether  the  defendant  was  one  of  the  robbers,  was 
the  real  question  in  controversy,  and  upon  that  point  his  iden- 


i'V 


m 


T: 


003 


AMEUICAN  CRIMINAL  HErORTS. 


! 


J. , 
^'1 


tiliciition  was  conclusively  shown.  If  tho  ovidonco  objected 
to  luid  been  excluded,  we  do  not  see  how  tho  jury  could  have 
entertiiined  a  doubt  of  tho  fact  of  the  robbery,  or  of  tho  iden- 
tity of  the  defen<lant  as  one  of  the  robbers,  unless  they  believed 
the  testimony  given  to  prove  an  alibi;  and  that  testimony  they 
did  not  believe,  else  the  defendant  would  have  been  acquitted. 
Wo  think  the  judgnuMit  (*iiouUl  pot  bo  reversed  for  tho  errone- 
ous re('ei)tion  of  this  evidence. 

The  objection  to  tho  question  put  to  tho  defendant  upon 
cross-exii  mi  nation,  viz.,  "What  were  you  and  that  man  Kceler 
doing  down  therein  Chinatown?"  was  properly  overruled. 
The  defendant  had  offered  himself  as  a  witnc^ss  in  his  own  be- 
half, and  in  accounting  for  his.wherealiouts  on  the  night  tho 
robl>erv  was  committed,  said  that  he  had,  after  leaving  a  cer- 
tain other  place,  gone  to  Chinatown.  The  (piestion  was  proper 
cross-examination,  and  was  material. 

The  (juestion  as  to  his  talk  with  Mr.  Afurray  at  the  time  of 
his  arrest  was  ])roper,  as  it  related  to  tho  same  matter;  that  is, 
us  to  where  he  had  been  tho  night  of  the  robbery. 

The  court  errod  in  receiving  in  ovidonc;;  tho  letter  written  by 
C.  Lazonby,  secretary  of  the  "Tulare  Wiiit3  Labor  Union,"  to 
Mr.  La  A[archo,  August  2S,  18t>;3,  notifying  him  to  discharge  all 
Chinese  in  hiseni])loy  who  had  not  acertilicate  of  registi-ation. 
Lazenby  was  called  by  defendant,  and  testified  in  chief  that 
ho  was  a  member  of  sjiid  organization,  and  stated  the])urpose8 
of  the  union.  All  this  was  immaterial,  but  was  received  with- 
out objection.  The  letter  was  offered  as  ])art  of  tho  cfiss- 
examination,  but  the  objection  that  it  was  irrehnan'  and  im- 
material should  have  been  sustained.  The  o"  ,\»'ver,  did 
not  affect  any  substantial  right  of  the  defe:  ,.  These  ri 
marks  apply  also  to  the  testimony  of  j\rr.  La  u-che  \v  rebut- 
tal.    The  evidence  sought  to  bo  contradicted  was  ini  naterial. 

The  testimony  of  Bachelder  in  relation  to  a  conversation 
with  the  defendant  just  after  his  arrest,  as  to  where  the  de- 
fendant was  the  night  of  the  robbery,  was  competent  to  rebut 
tho  testimony  of  defendant  upon  tho  same  point.  Tho 
question  put  to  the  same  witness  by  the  defendant,  upon  cross- 
examination,  as'to  what  La  Marche  told  him  the  night  before 
tho  arrest,  was  pro|)erly  excluded.  Tiie  information  charged 
the  defendant  with  having  robbed  the  Wing  Iling  Comj)aJiy 
of  $210.     The  evidence  showed  that  sum  was  taken,  but  that 


)bjectt'(l 
1(1  luivu 
10  iden- 
)elioved 
my  thoy 
quittod. 
I)  crroiie- 

nt  upon 
1  Kcoler 
•ruled, 
(jwn  1)0- 
i<j^ht  tho 
ij^  a  cor- 
s  i»r(>i)or 

timo  ()f 
",  tluit  is, 

ritton  by 
nion,"  to 
liar<,niall 
istnition. 
Iiiof  that 
])ur|)(»sc8 
vod  with- 
tho>  ri'oss- 
and  iiu- 
,  <'Vor,  did 
riK'so  ri 
in  rehut- 
iiatc'i'ial. 
versation 
re  tlie  do- 
t  to  rebut 
nt.      Tho 
pon  cross- 
;ht  before 
I  charged 
Company 
,  but  that 


PEOPLE  V.  CLARK. 


(5U3 


only  8175  belonged  to  tho  company.  Tho  court  properly  re- 
fused to  instruct  tho  jury  that  such  variance  entitled  the  de- 
fendant to  an  acquittal;  nor  did  tlie  court  err  in  char«'in<»-  the 
jury  that  it  was  not  necessary  that  tho  propei-ty  alleged  to 
have  been  taken  was,  in  its  entirety,  the  property  of  that  coui- 
pany.  I  see  no  ground  upon  Avhich  it  can  be  said  that  tiio 
verdict  is  against  law,  or  not  justified  by  the  evidence,  nor  any 
upon  which  it  can  be  held  that  the  punishment  ini|)()sed  hv 
tho  court  is  unusual.  I  advise  that  tho  judgnumt  and  orders 
appealed  from  be  aiHrmed. 

"VVe  concur:     Seauls,  C;  Bkwukk,  C. 

Pkr  Curiam.  For  tho  reasons  given  in  the  foregoing  ojiin- 
ion,  the  judgment  and  orders  api)ealed  from  are  altirmed. 

Note— ir/iof  cnmtitnteff.— A  Mnninm  taking,  by  violence  or  putting  in 
fear,  from  tlie  presence  of  the  person  robbed,  may  constitute  the  crime  of 
robbery.  (Jillett.  Cr.  Law,  g  740,  and  authorities  there  cited;  People  v. 
Olynn,  54  Hun  382,  7  N.  Y.  Supj).  555;  21  Am.  &  Enp;.  Enc.  Law,  4iM. 
Numerous  authorities  Kive  countenance  to  the  proiTOsition  that  the  violence 
must  precede  the  taking;,  hut  this  has  no  support  in  reiuson.  nor  by  any  well- 
considered  authority.  The  violence  to  the  person,  and  tlietakinj;,  may  cer- 
tainly be  contemporaneous.  The  defendant  must  have  fiixt  gained  posses- 
sion of  the  property  taken  by  violence,  to  the  person  of  the  i)ro«ecuting 
witness.  Th-jse  views  are  abundantly  sustained  by  the  authorities.  Bish. 
Cr.  Law  (New),  g  1107;  2  Whart.  Cr.  Law,  5^  aiO;  Rap.  Larceny,  §  446;  State 
V.  MeCinie,  5  R.  L  60;  Jackson  v.  State,  69  Ala.  249. 

There  is  nothing  under  the  comnum  law  or  statute  which  makes  the  value 
of  the  property  the  essence  of  the  crime.  State  v.  Pei-lei/,  86  Me.  427.  The 
taking  of  pn)perty  from  the  jwi-son,  by  force  and  violence,  constitutes  the 
olfense  of  robl)ery.  The  offense  of  theft  from  the  person  is  not  thus  consti- 
tuted. In  this  latter  case  the  property  must  be  taken  from  the  i)erson  with- 
out his  knowledge,  or  so  suddenly  as  not  to  allow  time  to  make  i-esistance, 
and  this  must  be  done  by  privately  stealing  the  i)roperty. 

On  a  prosecution  for  robbery,  it  appeared  that  defendant  and  a  com- 
panion, heavily  armed,  went  to  the  store  of  the  prosecuting  witness,  and 
defendant  ordered  him  to  put  up  various  parcels  of  merchandise,  with  a 
threat  of  assault  if  he  disobeyed.  After  his  order  had  been  obeyed,  defend- 
ant and  liis  companion  left  the  store,  and  the  latter  afterward  returned 
with  another  confederate,  and  carried  away  the  goods  onlered  by  defend- 
ant. Held,  that  defendant's  absence  from  the  store  at  the  very  time  the 
goods  were  carried  away  does  not  relieve  him  from  the  crime  of  robbery, 
since  it  is  sufficient  if  defendant's  threat  wa.s  the  operative  cause  of  the  de- 
livery to  his  co-conspirators.  Ashworth  v.  State  (Tex.  Cr.  App.),  20  S.  W. 
982. 

"  If  thieves  come  to  rob  A,  and,  finding  little  upon  him,  force  him  by 


(ill 


■lii- 


\i. 


::1;'P 


II 


1 


604 


AMERICAN  CRIMINAL  REPORTS. 


menace  to  swear  to  bring  them  a  greater  sura,  which  he  does  accordingly, 
tliis  is  robbery,  if,  at  tlie  time  he  dehvered  the  money,  the  fear  of  the  men- 
ace continued  to  operate  upon  him."  1  Whart.  Crim.  Law,  §  856;  1  Hale, 
P.  C.  532. 

Tlie  crime  of  robbery  may  be  committed  by  assault  or  violence,  as  well  as 
by  putting  the  party  robbed  in  fear  of  death  or  serious  bodily  injury. 

Evident. — Evidence  that,  prior  to  the  robbery  of  which  defendant  is  ac- 
cused, the  sheriff  had  an  execution  asainst  him,  is  competent  to  show  mo- 
tive for  the  crime.     Animtrong  v.  State  (Tex.  Cr.  App.),  30  S.  W.  235. 

In  a  prosecution  for  robbery,  evidence  that  the  money  stolen  was  won  by 
gambling  from  the  defendant  by  the  person  robbed  is  inadmissible.  Blain 
V.  State  (Tex.  Cr.  App.),  31  S.  W.  368. 

One  taking  property  believing  it  his  own,  it  is  competent  for  the  de- 
fendant to  testify  what  his  intent,  belief,  and  motive  were  at  the  time 
of  the  alleged  robbery,  and  court,  in  excluding  such  testimony,  pro- 
ceeds upon  the  theory  in  part  "that  the  intention  of  the  parties  is  to  he 
derived  alone  from  the  act  done;  from  tliat  and  the  surrounding  circum- 
stances determine  what  he  intended  to  do;"  and  that  in  arriving  at  the 
intention  the  defendant's  own  statement  and  testimony  is  not  to  be  con- 
sidered. This  undoubtedly  was  the  common-law  rule,  which  had  its  origin 
when  the  defendant  was  not  allowed  to  be  heard  in  his  own  behalf.  This 
point  is  discussed  in  the  case  of  People  v.  Farrell,  31  Cal.  576.  The  court 
there  says:  "  The  rule  that  the  intent  must  be  inferred  from  the  acts  and 
words  of  the  party  had  its  foundation  in  necessity,  created  by  the  rule 
which  excluded  parties  in  interest  from  the  witness  stand.  That  necessity 
i3  now  removed  by  the  abrogation  of  the  rule  which  created  it;  and  the 
legal  tenet  that  actions  must  speak  for  themselves,  and  words  furnish  their 
own  interpretation,  is  much  modified,  if  not  wholly  abrogated,  by  the  recent 
innovations  ujjon  the  common  law  by  which  parties  are  allowed  to  testify 
in  their  own  behalf.  Before  that  time  there  was  no  way  of  ascertaining 
the  motives  and  intentions  of  parties  except  by  inference  from  their  acts 
and  sayings;  and  all  experience  shows  that  they  may  frwiuently,  if  not  at  all 
times,  prove  very  imperfect  guides.  It  is  no  answer  to  say  that  this  enables 
a  party  to  substitute  a  false  motive  for  the  true  one,  or  to  convert  words 
spoken  in  one  sense  into  another.  If  the  argument  proves  anything,  it 
proves  too  much,  and  shows  that  the  radical  change  which  has  been  made 
is  in  all  respects  founded  in  folly,  rather  than  wisdom.  For  the  truthful- 
ness of  parties,  when  ujion  the  witness  stand,  we  mustde|)end,  as  in  the  csise 
of  other  witnesses,  ui)on  the  obligations  of  tlieir  oath  anil  their  reputation 
for  truth  and  veracity.  If  these  can  be  relied  ujmiii  for  the  truth  of  state- 
ments made  in  reference  to  acts  and  words  of  which  the  eye  and  ear  may 
take  notice,  they  may,  for  the  same  reason,  be  accepted  a»  guaranties  for 
the  truth  of  statements  made  in  respect  to  motives  and  intents  of  which 
the  mind,  or  inner  man  alone,  can  tjike  cognizance.  Nor  is  there  any  well 
grounded  reason  for  apprehending  that  this  rule  will  obstruct,  rather  than 
advance,  the  ends  of  justice.  There  is  no  more  «langer  of  imposing  Hjjon 
the  jury  falsehood  or  pretense  in  respect  to  motives  an<l  intents  than  there 
is  of  doing  the  like  in  respect  to  visible  or  external  circumstances.  The 
jury  can  as  readily  distinguish  between  the  false  and  true  in  resjH'ct  to  the 
former  as  to  the  latter.  If  the  motive  or  intent  assigned  is  inconsistent  with 
the  external  cii'cumutances,  it  must  be  discarded  as  false;  if,  on  the  cou- 


PEOPLE  r.  CLAPvK. 


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trary, they  are  consistent,  there  is  no  reason  why  they  may  not  be  true." 
This  doctrine  was  recognized  in  State  v.  Harrington,  13  Nev.  185,  and  fol- 
lowed. In  that  case  the  following  question  was  asked  the  defendant  by  his 
counsel:  "  At  the  moment  of  the  discharge  of  tlie  pistol  at  the  decesised, 
did  or  did  you  not  really  believe  that  you  were  in  danper  of  losing  your  life 
or  receiving  great  Iwdily  harm?"  and  Mr.  Justice  Leonard,  in  concluding 
his  disciission  on  this  question,  says  .  "  We  are  entirely  satisfied  that,  for 
the  purpose  of  showing  the  condition  of  his  mind  at  the  time,  and  to  estab- 
lish the  necessary  conditions  of  justification,  the  defendant  had  the  right  to 
answer  the  question  objected  to,  and  that  it  was  for  the  jury  to  consider  it, 
like  all  other  ter.timony  proper  to  be  given  in  the  case." 

In  White  v.  State,  53  Jnd.  595,  on  the  trial  of  an  indictment  for  larceny, 
it  was  held  competent  for  the  defendant  to  testify  as  to  w^liat  his  intentions 
were  at  the  time  the  goods  came  into  his  possession;  and  this  dotrtrine  is 
cited  approvingly  by  Thomiison  in  his  works  on  Trials.  In  modern  times 
the  rule  has  been  extended  not  only  to  criminal  cases,  but  to  civil  cases  as 
well,  whenever  tho  question  of  motive  or  intention  is  involved.  The  Utah 
supreme  court  passed  on  this  question  in  tlie  case  of  Coiuray  v.  Clinton,  1 
Utah,  215.  In  that  case  '*  the  defendant  was  charged  with  malicioualy  and 
wantonly  destroying  the  goods  of  tlie  plaintiff,"  and  it  was  held  that  the 
defendant  could  "state  what  motive  he  had,  if  any  other  than  to  obey  the 
writ,  in  doing  the  act  complained  of;"  and  also  wheth,>r,  at  that  time,  he 
had  ill  will  against  the  plaintiff. 

The  defendant  can  not  be  guilty  of  robbery  in  taking  his  own  property, 
whatever  other  offt'nse  he  may  have  committed  in  the  taking.    In  all  crim- 
inal cases  the  question  of  intent  is  an   important  one.     If  this  element  is 
lacking,  the  general  rule  is  that  no  offense  luis  been  committed.    This  rule  is 
not  only  humane,  but  a  contrary  one  would  be  opposed  toall  the  principles 
which  underlie  human  conduct,  as  respects  the  bearing  of  individuals 
toward  each  other,  and  also  as  regards  their  position  towai'd  the  state. 
And  the  law   is,  that  wlien  evil   intent  is  lacking,  the  act  or  omission, 
which  otherwise  would  constitute  an  offense,  is  robbed  of  its  criminality. 
Tlie  rule  governing  this  class  of  cases  seems  to  be  well  settled  and  thoroughly 
defined.    In  a  note  in  70  Am.  De<'.  188  (State  v.  McCnne),  where  a  number 
of  authorities  are  collected,  this  proposition  is  laid  down:  "  When  the  pris- 
oner takes  the  property  under  a  bona  fide  impression  tliat  the  property  be- 
longs to  him.  he  commits  no  robbery,  for  there  is  no  animmfurandi." 
Longv.  State,  12  Ga.  293;  Brown  v.  State,  28  Ark.  126— where  the  taking 
was  in  the  presence  of  others,  as  was  the  case  at  bar.    Again,  it  is  held  that 
when  a  creditor  conii)els  tlie  payment  of  his  debt  by  the  use  of  violence,  he 
is  not  guilty  of  robbery,  for  there  is  no  an imus  furc  ndi.    State  v.  HoUyway, 
41  Iowa  200.    In  the  Iowa  case.  Miller,  C.  J.,  says:    "  In  robbery,  as  in  lar- 
ceny, it  is  essential  that  the  taking  of  the  goods  be  aiiinio  fnrandi.    Unless 
the  taking  be  with  a  felonious  intent,  it  is  not  robbery.    If  a  man.  under  a 
bona  fide  belief  that  the  property  is  his  own,  obtain  it  by  menaces,  there  is  a 
trespass,  but  no  robbery.    Though  the  defendant  take  the  goods  with  vio- 
lence, or  by  putting  in  fear,  yet,  if  he  do  so  under  a  bona  fide  claim,  it  is 
no  robbery,  for  the  r.^ai  o  >  that  the  felonious  intent  is  wanting."    "  In  all 
cases  of  this  kind,  the  question  whether  the  act  is  done  with  a  felonious  in- 
tent, is  one  of  fact  for  the  jury."    The  defendant,  in  all  cases,  is  entitled  to 
have  the  law  governing  liis  case  given  to  the  jury  for  their  guidance,  and  in 


m\\ 


606 


AMERICAN  Criminal  reports. 


the  question  of  honoat  belief  and  bona  fide  intention  should  be  submitted  to 
and  passed  upon  by  the  jury  under  proper  instructions.  See  Com.  t\  Steb- 
bins,  8  Gray  492;  2  Russ.  Crimea  (9th  Ed.)  p.  104;  2  Rose.  Cr.  Ev.  (8th  Ed.) 
p.  1157, 

To  constitute  the  offense  of  robbery,  there  must  be — First,  a  taking  of  the 
propei'ty;  second,  the  taking  must  be  with  a  felonious  intent;  t'..."d,  it  must 
be  from  the  person  or  presence  of  anotlier;  fourth,  against  his  will;  and, 
fifth,  accomplished  by  means  of  force  or  fear.  3  Greenl.  Ev.,  J?  2'.'3.  And, 
if  either  of  these  elements  is  lacking,  the  offense  can  not  be  robbery. 

Indictment. — In  an  indictment  charging  that  the  crime  was  committed 
by  force  and  with  violence,  it  is  unnecessary  to  charge  that  the  party  robV)ed 
was  put  in  fear.  A  well  known  text  writer  says:  "  With  respect  to  the 
putting  in  fear,  it  is  not  necessary  to  lay  a  putting  in  fear  in  the  indictment; 
and  the  circumstance  of  actual  fear  need  not  be  proved  upon  the  trial:  for 
if  the  fact  be  laid  to  be  done  violently  and  against  the  will,  the  law  in  odium 
apoliatoriii  will  presume  fear."    2  Russ.  Crimes  (9th  Ed.)  122. 

Former  jeopardy. — Where  the  record  shows  the  defendant  consented  to 
the  discharge  of  the  jury  after  a  void  or  defective  verdict,  the  defense,  on  a 
second  trial,  of  nace  in  jeopardy,  is  unavailing.  People  v,  Curtis,  76  Cai. 
57;  17  Pac.  Rep.  941;  1  Bish.  Crim.  Law.  is 998,  and  casescited,  U.  S.  v.  Perez, 
9  Wheat.  5F.0;  People  v.  Kinney,  51  Cal.  278;  People  v.  Helhhuj,  59  Cal.  567. 
And  the  rule  is  the  same  where  the  record  is  silent  as  to  the  consent  of  the 
defendaiit.  Error  of  the  trial  court  must  be  made  to  appear,  ami.  if  tlie 
record  is  silent  as  to  the  consent  of  the  defendant,  his  consent  will  be  pre- 
sumed.   People  V.  Curtis,  76  Cal.  57. 


Norton  v.  Statk. 
(72  Miss.  128.) 

Seduction:   Indictment— Married  Man— Promise  of  Marriage, 

An  indictment  for  seduction  under  promise  of  marriage,  alleging  that 

the  defendant  had  carnal  knowledge  of  the  woman  "by  virtue  of  a 

false  or  feigned  promise  of  marriage,"  and  not  alleging  that  the  promise 

was  made  to  her,  is  sufficient  afti'r  verdict. 
On  a  prosecution  for  seduction  under  promise  of  marriage,  the  chaHtity 

of  the  woman  at  the  timeof  the  intercourae  is  essential.     Ferguson  r. 

State,  71  Miss.  805,  qualified. 
An  indictment  for  seduction  under  promise  of  marriage  need  not  allege 

that  the  man  was  unmarried,  although,  if  married,  and  the  woman 

knew  it,  no  conviction  could  be  had. 
It  is  not  absolutely  essential  that  an  indictment  for  seduction  under 

promise  of  marriage  should  aver  that  the  woman  was  single. 


Appeal  from  Circuit  Court,  Copiah  County;  J.  J3.  Chrisman, 
Judge. 


NORTON  V.  STATE. 


607 


Albert  B.  Norton  was  convicted  of  seduction  under  promise 
of  marriage,  and  appeals.    Reversed. 

Geo.  S.  Dndds  and  Willing  cfc  liamsey,  for  ap]-)ellant. 
Frank  Johnston,  Attorney-General,  for  the  State. 

Whitfield,  J.     We  can  not  treat  the  motion  to  quash  as  a 
demurrer.    The  languaj^e  of  sections  1354  and  13.55,  Code  1892, 
is  plain,  and  bind  us.     If  a  demurrer  had  been  interposed  be- 
low,  it    should   have   been    sustained,    and   the    indictment 
quashed,  unless  amended;  for  the  averment  which  ought  to  be 
clearly  set  forth  in  every  indictment  under  section  1298,  Code 
1802 — that  the  defendant  made  the  promise  to  the  woman  of 
whom  he  had  the  carnal  knowledge— while  set  forth  here  in  such 
wise  as  to  ]>revent  objection  after  verdict,  is  not  set  forth  with 
such  clearness  as  to  sustain  the  indictment  against  objection 
properly  taken  before  verdict  by  demurrer.    But  whilst  we  can 
not  treat  the  motion  to  quash  as  a  demurrer,  yet  if  the  indict- 
ment omits  altogether  any  averment  that  the  defendant  made 
the  pr(jmise  to  the  woman  of  whom  he  had  carnal  knowledge, 
which  averment  we  hold  to  be  essential  in  such  an  indictment, 
there  would  be  a  total  omission  of  a  matter  of  substance — of 
an  element  of  the  very  essence  of  the  offense,  and  the  indict- 
ment would  be  void  as  charging  no  offense,  and  the  judgment 
and  sentence  of  the  law  could  not  follow  upon  a  conviction  had 
under  it;  and,  a  matter  of  constitutional  right  being  thus  in- 
volved, the  ])oint  could  be  raised  here,  and  section  1341,  Code 
1S02,  would  not  apply,  as  held  in  Leioi.^  v.  /State,  49  Miss.  350, 
and  Ni'inroniljs  Oisr,  37  j\Iiss.  397.     The  whole  ])ith  of  the 
matter  is  put  l)y  Chief  Justice  Shaw  {Com.  v.  Odlin,  23  Pick. 
275)  in  this  language,  approved  by  this  court  in  Sulliran's 
Case,  07  Miss.  35  i,  7  South.  275:  "  The  verdict  of  a  jury  does 
nothing  more  than  certify  the  facts  charged;  and,  if  these  do 
not    show   the    party  guilty,    he  can  not    be  considered  as 
having  violated  the  statute."    There  can  be  no  doubt  that  it  is 
of  the  essence  of  the  offense  denounced  by  section  1298  of  the 
Code  of  1892  that  the  defendant  should  make  a  false  or  feigned 
promise  of  marriage  to  the  woman  in  the  case,  and  that  the 
indictment   should  aver  this.     Grant's  Case,  4  Parker  Cr.  R. 
528.     In  Bishop's    Directions  and   Forms  (section  950)   the 
proper  form  of  indictment  under  this  statute  is  speciiically  set 


■hl»' 


t^jl":.! 


608 


AMERICAN  CRIMINAL  REPORTS. 


k 


'ii    ■ 


forth,  the  language  being  "  that  A,"  etc.,  "  did  obtain  carnal 
knowledge  of  one  X,"  etc.,  "  by  virtue  of  a  false  express 
promise  of  marriage  to  her  previously  made  by  the  said  A." 
In  Callahan's  Case,  63  Ind.  199,  Cheney's  Case,  36  Ark.  75, 
Grant" s  Case,  4  Parker,  Cr.  R.  528  (which  see  specially),  CoWs 
Case,  40  Tex.  148,  Bryant's  Case,  34  Kan.  68,  8  Pac.  260,  and 
many  others,  it  is  expressly  averred  that  the  carnal  knowledge 
was  obtained  by  virtue  of  a  promise  made  by  the  defendant  to 
the  woman  in  the  case.  The  indictment  in  Fergtison's  Case, 
71  Miss.  805,  15  Soutli.  W),  follows  Mr.  Bishop's  form  exactly, 
and  this  book  is  presumably  in  the  library  of  every  district  at- 
torney in  the  state.  The  allegation  in  this  indictment  does 
not  use  the  language  "  promise  previously  made  by  said  de- 
fendant to  said  Katie  Doughiss,"  but  it  does  allege  that  the 
defendant  had  carnal  knowledge  of  her  "  by  virtue  of  a  false 
or  feigned  promise  of  marriage."  We  think  this  is  a  very 
defective  allegation  in  the  particular  under  consideration,  but 
still  there  is,  by  necessary  implication,  the  allegation  that  the 
promise  was  one  made  by  defendant  to  Katie  Douglass.  No 
other  construction  not  too  fanciful  to  serve  as  the  basis  of  a 
judgment  of  reversal  can  be  made.  "When  the  description 
of  the  offense,  taking  into  consideration  its  nature,  and  the  nat- 
ural and  legal  import  of  the  terms  used  in  designating  it,  is 
such  as  to  convey  a  certain,  clear, and  full  idea  of  the  offense" 
charged,  it  is  sufficient,  says  this  court  in  Jesse's  Case,  28 
Miss.  loO.  There  can  be  no  sound  and  satisfactory  meaning 
given  to  this  allegation,  looking  to  the  whole  indictment, 
other  than  that  the  promise  in  question  was  one  made 
by  the  defendant  to  Katie  Douglass,  defective  as  the 
allegation  manifestly  is.  In  Bryan's  Case,  34  Kan.  68,  8 
Pac.  260,  the  indictment  did  not  in  terms  charge  that  the 
woman  seduce;!  was  a  single  woman,  but  it  did  charge  that 
she  was  of  the  age  of  only  seventeen  years.  The  court  said  : 
*'  The  allegation  that  Bryan,  being  a  male  person,  seduced  her 
under  a  jiromise  of  marriage,  inferentially  charged  that  the 
female  was  a  single  woman.  It  wouhl  conform  to  the  better 
practice  if  the  information  contained  an  express  averment  that 
the  prosecutrix  was  at  the  time  a  single  woman;  but  as  the  lan- 
guage used  necessarily  implies  that  she  was  single  at  the  time 
stated,  and  as  appellant  could  not  have  been  misled  or  preju- 
diced by  anything  in  the  information,  we  think  it  was  not  fatal 


NORTON  V,  STATE. 


609 


for  omitting  the  direct  averment  that  the  prosecutrix  was  a 
single  woman."  We  hold  in  this  case  that  the  allegation  is 
very  defectively  made,  but  is  set  out,  by  reasonable  implication, 
in  such  sense  and  with  such  sutliciency  that,  at'i,er  verdict  it  is 
aided  by  section  1341,  Code  1S92.  See  note  1  to  1  Saund.  R. 
227. 

But  it  is  insisted  that  the  court  below  erred  in  grantino-  the 
instruction  given  for  the  state.  We  think  this  instruction,  ap- 
plied to  the  facts  of  this  case,  squarely  presents  the  question 
whether  the  woman  should  be  of  previous  chaste  character, 
under  this  statute.  We  have  found  after  careful  examination, 
but  two  statutes  identical  with  ours,  and  those  are  the  statutes 
of  Arkansas  and  Texas;  and  in  the  case  of  Polk  v.  State,  40 
Ark.  4S2  (a  case  strikingly  like  this  in  its  facts),  the  court 
says,  speaking  of  testimony  olfered  by  defendant  to  show  pre- 
vious unchaste  character,  which  had  been  excluded  by  the 
court  below:  "In  every  prosecuticm  for  seduction,  the  char- 
acter of  the  seduced  female  is  involved  in  the  issue.  *  *  * 
It  is  not,  indeed,  expressed  in  our  statute,  as  it  is  in  the 
statute  of  New  York  and  some  of  the  other  states,  that  the 
woman  should  have  been  of  previous  chaste  character,  but 
it  is  plainly  implied.  Tlio  legislature  never  intended  to  send  a 
man  to  the  penitentiary  for  having  had  illicit  connection 
with  a  prostitute,  or  a  woman  of  easy  virtue,  where  she  had 
consented,  even  under  a  promise  of  marriage."  And  the  su- 
preme court  of  Michigan  {People  v.  Clark,  33  Mich.  112), 
construing  a  statute  identical  with  ours,  in  leaving  out  the 
words  "of  previous  chaste  character,"  in  a  prosecution  for 
"  seducing  and  debauching  an  unmarried  woman  '  (the  statute 
not  having  in  it  the  words  of  "previous  chaste  character"), 
says :  "  In  most  of  the  states  their  statute  makes  the  seduc- 
tion of  a  woman  of  *  previous  chaste  character '  an  indictable 
offense,  while  there  are  no  such  words  nor  any  of  like  import 
in  ours.  *  *  *  If,  however,  we  are  correct  in  what  we 
have  already  said  upon  the  question  as  to  what  is  necessary  to 
make  an  act  of  illicit  intercourse  seduction,  then  the  chastity 
of  the  female  at  the  time  of  the  alleged  act  is  in  all  cases  in- 
volved. *  *  *  This,  upon  principle,  we  consider  the  cor- 
rect doctrine" — citing  many  authorities.  In  an  elaborate 
note  in  State  v.  Carron,  87  Amer.  Dec.  408,  it  is  declared  that 


..;i..iH, 


'I; 


GIO 


AMERICAN  CRIMINAL  REPORTS. 


'■i 


I  i 


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"  the  evident  design  of  the  laws  on  this  subject  is  to  protect 
virtuous  unmarried  females."  The  Texas  statute,  practically 
identical  with  ours,  also  omits  the  words  "  of  previous  chaste 
character; "  but  the  court  of  that  state,  in  two  well-considered 
cases,  Putnam  v.  State,  29  Tex.  App.  454,  and  Mrous  v.  State, 
31  Tex.  Cr.  App.  597,  expressly  held  that  the  previous  chaste 
character  is  involved  in  the  very  constitution  of  the  offense, 
and  the  want  of  it  a  perfect  defense.  In  the  last  case,  decided 
in  March,  1893,  the  trial  court  charged  that  "  if  the  jury  be- 
lieve that  defendant  and  Tina  Jarzell  were  well  acquainted 
with  each  other,  and  defendant,  knowing  her  character,  ])rom- 
ised  to  marry  her,  and  subsequently  seduced  her  by  virtue  of 
said  promise,  he  could  not  avail  of  her  want  of  chastity  as  a  de- 
fense." The  court  held  it  error,  and  reversed  the  case.  A 
stronger  and  more  pointed  announcement  of  the  view  we  are 
putting  forward  can  hardly  be  imagined,  the  charge  in  that 
case  being,  as  here,  in  the  very  language  of  the  statute.  It  is 
true  that  in  nearly  all  the  states  the  statutes  making  punish- 
able the  seduction  of  women  under  promise  of  marriag(i  have 
in  them  the  words  "of  previous  chaste  character,"  or  "of  good 
repute,"  or  similar  words;  but  this  legislative  consensus  of 
opinion  upon  the  identical  subject,  only  emphasizes  the  accu- 
racy of  Mr.  Fresman's  statement,  sap/'a — that  it  is  the"  evident 
purpose  of  these  laws  to  protect  "  virtuous  unmarried  females." 
This  Statute  (section  1295)  is  a  statute  against  the  seduction 
of  females  over  sixteen  by  promise  of  marriage.  It  is  none 
the  lerfs  seduction  which  is  the  thing  denounced,  because  it  is 
seduction  in  a  specified  mode  by  tiie  promise  of  marriage.  We 
must  not  confuse  ourselves  by  arguing  that,  because  the  seduc- 
tion made  punishable  here  is  setluction  under  promise  of  mar- 
riage, the  seduction  is  not  still  the  substantive  thing  denounced. 
The  definition  of  "seduction"  is  necessarily  at  the  threshold 
of  the  inquiry.  The  legislature,  doubtless,  properly  thought 
that  a  woman  may  much  more  readily  yield  to  this  particular 
mode  of  seduction — the  promise  of  marriage — than  to  any 
other;  but  it  is  seduction  still,  in  its  legal  import,  though  ac- 
complished in  this  particular  mode  which  is  here  denounced. 
There  can  be  no  such  thing  as  the  seduction  of  a  woman,  at 
the  time  of  seduction,  of  unchaste  character.  The  supreme 
court  of  Wisconsin  say  (  We^tv.  State,  1  Wis.  192):  "A  pros- 
titute may  bo  the  subject  of  rape,  but  not  of  seduction."   Ami 


"!?,5' 


NORTON  V.  STATE. 


611 


0  protect 
ractically 
us  chaste 
onsidered 
s  V.  State, 
us  chaste 
e  offense, 
G,  decided 
)  jury  be- 
cquainted 
iter,  prom- 
■  virtue  of 
ity  as  a  de- 
)  case.     A 
Dvv  we  are 
Tc  in  that 
uto.     It  is 
v^  punisli- 
riat^ii  liave 
r  "  of  good 
nsensus  of 

the  accu- 
he  evident 

1  females." 
seduction 

It  is  none 
;cause  it  is 

iage.    Wo 

the  seduc- 
ise  of  mar- 
denounced. 

threshold 
ly  thought 

particular 
I  an  to  any 
though  ac- 
denounced, 
woman,  at 
le  supreme 
"  A  pros- 
:ion."   And 


Chief  Justice  Brickell,  in  the  course  of  an  admirable  opinion 
in  Wilson  v.  State,  73  Al  i.  533,  says :    "  The  word  '  sjduce,' 
as  found  in  the  statute  (one  on  this  subject),  imjjorts  not  only 
illicit  sexual  intercourse,  but  it  imports  also  a  surrender  of 
chastity.     The  statute  is  for  the  protection  of  the  chastity  of 
unmarried  women,  and  the  existence  of  the  virtue  at  the  time 
of  the  intercourse  is  a  necessary  ingredient  of  the  offense;  for, 
as  has  been  often  said,  the  prostitute  may  be  the  victim  of 
rape,  but  she  is  not  the  subject  of  seduction.    By  this  ^s  not 
meant,  however,  that  the  woman  who  may  at  some  tiine  have 
fallen  can  not  be  the  subject  of  seduction.     That  may  be  true, 
and  there  may  be  reformation;  and,  at  the  time  she  yields  to 
the  man's  embraces,  she  may  have  the  virtue  of  chastity,  not 
in  the  high  degree  of  the  woman  who  has  not  strayed,  but  yet 
within  the  meaning  of  the  statute  entitling  her  to  protection." 
The  Alabama  statute  originally  did  not  have  the  words  "  of 
previous  chaste  character  "  in  it,  but,  by  an  amendment,  had 
them  when  this  opinion  was  delivered.    But  the  opinion  on 
the  point  of  what  seduction  is,  is  directly  relevant. 

It  is  abundantly  settled  that  a  woman  who  has  fallen,  and 
who  has  really  reformed,  is  chaste,  as  Chief  Justice  Brickell 
says,  within  the  meaning  of  all  these  statutes,  for  she  is  then 
chaste  when  the  second  time  seduced  by  the  feigned  promise. 
Patterson  v.  Ilayilen,  17  Or.  238;  Bowers  v.  State,  20  Ohio  St. 
542;  Peoj)lev.  Clark,  33  Mich.  117.    She,  thus  restored,  is  pro- 
tected, because  chaste  then.     But  the  prostitute  who  is  such  at 
the  time  of  the  promise  can  not  then  be  seduced.     She  is  al- 
ready at  the  time  without  chastity.    See,  also,  Baml  v.  Boeh- 
ner,  72  Iowa  318.     See,  also,  note  to  People  v.  De  Fore,  CA 
Mich.  003;  8  Am.  St.  Rep.  S70-S72,    The  statute  under  con- 
sideration appears  in  Laws  18S8,  p.  80,  under  the  title  "An  act 
to  prevent  the  seduction  of  females."  Section  1208,  Code  1802,  is 
captioned  "  Seduction  of  females  over  age  of  sixteen  by  fraud; " 
and  the  last  clause  in  it  uses  the  expression  ''  the  female  se- 
duced."    Section  lOO-l,  Code  1802,  is  captioned  "  Seduction  of 
female  child  under  sixteen."     These   two  statutes    are   the 
necessary  complements  of  each  other.     One  punishes  the  se- 
duction of  girls  under  sixteen  by  any  means;  the  other,  seduc- 
tion of  females  over  sixteen  by  means  of  a  promise  of  marriage. 
Ihit  seduction  is  the  substantive  thing  punished.    Now,  sec- 
tion lOOi  requires  the  girl  under  sixteen  to  be  "  of  previous 


;    ■ 


■U. 


C12 


AMERICAN  CRIMINAL  REPORTS. 


'n 


i 


n 


t'i 


chaste  character  "  before  she  can  invoke  the  arm  of  the  crim- 
inal law.  Can  it  be  possible  that  the  legislature  meant  that 
the  girl  under  sixteen  should  be  required  to  show  "previous 
chaste  character,"  but  the  experienced  ni/mph  du  pavement 
not  ?  That  the  prostitute  can  invoke  the  vindicating  power  of 
the  law,  on  terms  more  favorable  to  success  than  the  girl 
under  sixteen  ? 

When  Mrs.  Quickly  conceals  from  the  lad  who  sails  between 
Sir  Jack's  "  East  and  West  Indies  "  the  contents  of  the  notes, 
on  the  ground  that  "  it  is  not  well  children  should  know  any 
wickedness,"  we  have  the  great  master  of  human  nature  rais- 
ing into  relief  the  truth  universally  recognized — that  child- 
hootl  is,  in  the  estimation  of  even  the  most  hardened,  the 
period  of  purity.  And  when  we  have  the  supreme  court 
of  Wisconsin  telling  us,  "If  Joseph  Andrews  had  yielded  to 
the  salacious  solicitations  of  Lad}'  Booby,  as  she  lay  naked  in 
her  bed,  he  would  have  been  guilty  of  debauching  lier  per- 
son, but  certainly  not  of  corrupting  her  mind,"  we  have 
presented  to  our  consciousness  the  other  piccure  of  the  woman, 
long  past  childhood,  with  chastity  gone.  Can  the  same  act 
be  a  felony,  punishable  by  five  years'  imprisonment  in  the  peni- 
tentiary, if  the  female  be  a  prostitute,  over  sixteen,  but  nevertlie- 
less  innocent  and  dispunishable  if  only  the  victim  be  a  girl  under 
sixteen  ?  To  hold  that  in  a  prosecution  of  one  for  seducing  a 
girl  under  sixteen,  not  yet  imperiled  by  contact  with  the  vicious, 
previous  chastity  is  essential  to  conviction,  but  that,  in  a  pros- 
ecution for  seducing  a  woman  long  conversant  with  the 
existence  of  libertinism,  chastity  is  not  essential,  is  an  obvious 
inversion  of  nature,  for  the  presumption  of  purity  must  be 
stronger  in  the  childhood  period.  If  law  is  the  perfection  of 
reason,  this  construction  must  be  discarded.  There  must  be 
seduction — a  leading  aside  from  the  path  of  virtue.  She  who 
is  at  the  time  of  the  alleged  seduction  already  uncliaste  may 
be  still  further  debauclieJ,  but  not  seduced.  It  is  a  contra- 
diction in  terms  to  say  that  she  who  is  already  at  the  time 
of  the  act  unchaste  can  be  seduced.  The  transaction  should 
not  "smack  of  bargain  and  barter,"  but  should  siwak 
the  tragedy  of  betrayal.  It  will  be  specially  noted  that 
all  the  decisions  referred  to  in  this  opinion  except  those 
from  Michigan,  are  on  statutes  for  seduction  under  promise  of 
marriage,  like  ours,  and  that  the  statutes  of  Arkansas  and 


he  crlm- 
ant  that 

previous 
pavement 
power  of 

the  girl 

between 

lie  notes, 

:now  any 

ture  rais- 

lat  child- 

enetl,  the 

ine  court 

yielded  to 

naked  in 

her  per- 

we    have 

le  woman, 

same  act 

ti  the  peni- 

t  neverthe- 

girl  under 

seducing  a 

he  vicious, 

,  in  a  pros- 

with    the 

m  obvious 

y  must  be 

rfection  of 

re  must  be 

She  who 

haste  mav 

J  a  contra- 

t  the  time 

ion  should 

uld     speak 

loted    that 

cept    those 

promise  of 

Kansas  and 


NORTON  V.  STATE. 


613 


Texas  are  identical — the  one  literally,  the  other  substantially 
— with  ours. 

As  the  case  must  go  back  for  a  new  trial,  we  add  that  we  do 
not  regard  the  evidence  in  this  record  as  sustaining  the  plea  of 
the  statute  of  limitations.  Katie  Douglass  testified  that  the 
promise  was  continued  up  to  the  fall,  181)3,  and  on  this  point 
the  case  of  People  v.  M'dlsjyimjh,  11  Mich.  278-282,  is  decisive 
that  the  prosecution  is  not  barred. 

It  is  not  necessary  to  allege  that  the  man  was  unmarried, 
though,  if  married,  and  the  woman  knew  it,  no  conviction 
could  be  had.  Nor,  it  seems,  is  it  essential  that  the  indictment 
should  aver  that  the  woman  was  a  single  woman ;  this,  it  is 
said,  being  matter  of  defense.  Bish.  I)ir.  &  Forms,  §  950,  note 
3.  But  as  held  in  Ferguson'' s  Case,  71  Miss.  805,  it  is  better  prac- 
tice to  make  the  averment.  The  learned  judge  below,  in 
granting  the  instruction  complained  of,  very  naturally  mis- 
conceived the  concurring  opinions  in  Ferguson's  case,  and  gave 
them  a  broader  meaning  than  was  intended.  For  the  error  in- 
tlicated,  the  judgment  is  reversed,  and  the  cause  remanded. 

Cooper,  C.  J.,  specially  concurring.     In  Ferguson  v.  State, 
71  Miss.  805,  in  which  the  (piestion  as  to  whether  the  female, 
carnal  knowledge  of  whom  the  defendant  had  obtained  by 
promise  of  marriage,  must  have  been  of  previous  chaste  char- 
acter, was  not  necessarily  involved.    Judge  Campbell  and  I 
doubted  whether,  under  our  statute,  this  fact  Avas  essential, 
and  in  a  concurring  opinion  therein,  I  expressed  the  opinion 
that  such  previous  chaste  character  was  not  required.     On  a 
more  careful  examination  of  the  question  I  have  reached  the 
opposite  conclusion.     I  am  largely  influenced  by  the  fact  that 
in  another  section  of  the  statute  (section  1004),  where  the  se- 
duction of  females  under  sixteen  years  of  age  is  denounced, 
the  female  must  have  been  of  previous  chaste  character.    I 
can  not  believe  that  the  penalty  of   the  law  is  denounced 
ao-ainst  the  seducer  of  a  female  under  the  age  of  sixteen  only 
when  she  is  of  previous  chaste  character,  and  \'et  that  pre- 
vious chii;  te  character  is  not  essential  when  the  woman  is 
above  that  age. 


fr^ 

■  ■'if        ' 

'  '1 

!'l 


;il 


I 


!l 


ni4 


AMEUICAN  CRIMINAL  REPOIITS. 


Bakkeb  V.  Commonwealth. 


(90  Va.  830.) 

SEDVCtlo^—EL'ulcHcc—PresuviiJtion  of  innocence. 

1.  A  question  oskod  a  witness  on  a  prosecution  for  seduction,  ns  to  wlietluT, 

from  facts  within  hisowii  knowiedKe.  the  prosecutrix  resided  at  a  bawdy 
house,  was  properly  excluded  as  being  too  general  and  calling  lor  a  con- 
clusion. 

2.  No  compromise  between  the  parties  la- s  a  criniin.il  prose  ut"on  for  a 

seduction  under  promise  of  nuirriage. 
8.  On  a  prosecution  for  seduction,  it  was  proper  to  charge  that  if  the  jiu'v 
believed  from  the  evidence,  beyond  a  reasonable  doubt,  th.at  the  pros- 
ecutrix was  an  unmarried  female,  of  previous  chaste  character,  at  the 
time  of  her  alleged  seduction,  and  she  wius  seduced  by  the  prisoner  under 
promise  of  marriage,  they  should  find  him  guilty. 

4.  An  instruction  that  the  prisoner  comes  to  trial  presumed  to  V»e  innocent. 

and  this  presumptionextcnds  to  the  end  of  the  trial,  andthe  jury  should 
endeavor  to  reconcile  all  the  evidence  with  this  presumption,  was  prop- 
erly refused  as  misleading. 

5.  On  a  prosecution  for  seduction,  the  female  is  presumed  to  be  chaste,  and 
it  lies  on  the  prisoner  to  prove  the  contrary. 


mi 


11:^ 


i'l   :     '-vjl 


.1 


Error  to  Henry  County  Court. 

One  Barker  was  convicted  for  seduction,  and  brings  error. 
Reversed. 

S.  A.  An  (lemon  and   W.  II.  Gravely,  for  plaintiff  in  error. 
E.  Taylor  Scott,  Attorney  General,  for  the  Coninion wealth. 

Lewis,  P.  The  prisoner  was  indicted  and  committed,  under 
section  3G77  of  the  Code,  for  the  seduction,  under  promise  ol 
marriage,  of  the  prosecutrix,  an  unmarried  female  of  previous 
chaste  character.  Numerous  exceptions  were  taken  to  rulings 
of  the  court  during  the  progress  of  the  trial,  which,  so  far  as 
it  is  necessary  to  notice  them,  will  be  considered  in  the  order 
in  which  they  are  presented. 

1.  The  first  relates  to  the  exclusion  of  evidence  offered  by 
the  defendant  to  show  the  character  of  the  house^whether  as 
a  house  of  ill  or  good  repute — at  which  the  prosecutrix  residetl 
prior  to  her  alleged  seduction.  It  is  contended  that  the  evi- 
dence ought  to  have  been  received  as  relevant  to  the  question 
of  the  previous  chaste  character  of  the  prosecutrix,  which  was 


BARKER  V.  COMMONWEALTH. 


G15 


directly  in  issue.  But  we  are  of  opinion  that  the  character  of 
the  liouso  could  not  bo  shown  by  general  reputation,  but  only 
by  proof  of  particular  facts.     Kenyan  v.  Pt'i>j)lc,  20  N.  Y.  203. 

2.  At  a  subsequent  stage  of  the  trial,  a  witness  for  the  de- 
fendant was  asked  to  state  to  the  jury,  from  facts  within  his 
own  knowledge,  whether  the  house  was  a  "  bawdy  jiouse  or  a 
house  of  respectability;"  whereupon  the  attorney  for  the  com- 
monwealth objected,  and  the  court  sustained  the  objection,  but 
said  the  witness  might  bo  asked  to  state  whether  any  one  vis- 
ited the  prosecutrix  at  her  mother's  house,  or  anywhere  else, 
for  the  pur[)oso  of  prostitution  or  lewdness.  Counsel  for  inns- 
oner  declined  to  ask  the  latter  question,  and  excepted  to  the 
ruling  of  the  court.  We  are  of  opinion  that  tho  exception  is 
not  well  taken.  Tho  first  question  was  altogether  too  o-oneral. 
Tlio  witness  ought  to  have  been  asked  to  state  facts  and  not 
his  conclusions. 

3.  Tlie  subject  of  the  next  assignment  of  error  is  tho  action 
of  tho  court  in  instructing  the  jury  that  no  compromise  be- 
tween the  prosecutrix  and  the  prisoner,  or  any  one  else,  could 
bar  a  prosecution  by  the  commonwealth  for  the  crime  charged 
in  the  indictment.  There  was  no  error  in  this  instruction. 
JState  V,  Dc'itrlck,  51  Iowa  407. 

4.  The  court  also  instructed  the  jury,  that  if  they  believed 
from  tho  evidence,  beyond  a  reasonable  doubt,  that  the  pros- 
ecutrix was  an  unmarried  female,  of  previous  chaste  character 
at  the  time  of  her  alleged  seduction,  and  that  she  was  seduced 
by  tho  prisoner,  by  having  illicit  connection  with  her  under 
promise  of  marriage,  they  should  find  him  guilty.  This  in- 
struction is  substantially  in  the  language  of  tho  statute,  and 
propounds  the  law  correctly.  Illicit  connection  accomplished 
by  means  of  a  promise  to  marry,  in  a  case  like  the  present,  con- 
stitutes tho  offense  charged  in  the  indictment  and  made  pun- 
ishable by  the  statute.  Kemjon  v.  People,  26  N.  Y.  203;  Boyee 
V.  People,  55  N".  Y.  CAi;  State  v.  IleatheHon,  60  Iowa  175. 

0.  Among  the  instructions  offorod  by  the  prisoner  was  the 
following,  viz. :  "  The  court  instructs  the  jury  that  the  prisoner 
comes  to  trial  presumed  to  bo  innocent,  and  this  presumption 
extends  to  the  close  of  tho  trial;  and  the  jury  should  endeavor 
to  reconcile  all  the  evidence  with  this  presumption."  In  lieu 
of  this,  the  court  instructed  the  jury  that  "  the  prisoner  comes 
to  trial  presumed  to  be  innocent,  and  this  presumption  con- 


1 

t 

i  ' 
»;  ■ 


I 
i 


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) 

M 

i 
i 

'...  'M 

L' 

616 


ALIERICAN  CRIMINAL  REPORTS. 


I 


m 


m 


\     Mr 


tinuGS  until  it  is  rebutted  by  the  commonwealth  beyond  a 
reasonable  doubt;  and  the  jury  can  not  convict  unless  they  can 
reconcile  from  tiie  evidence  tlie  guilt  of  the  prisoner  with  all 
the  necessary  allegations  of  the  indictment."  There  was  no 
error  in  this  ruling.  The  instruction  offered  by  the  prisoner 
was  calculated  to  mislead  the  jury.  It  Avas  the  duty  of  the 
jury  to  weigh  the  evidence  carefully,  and  to  pass  upon  it  dis- 
passionately, and  to  give  the  prisoner  the  benefit  of  any  reason- 
able doubt ;  but  it  was  no  more  their  duty  to  encleavor  to 
acquit  him  than  to  convict  him. 

6.  Nor  was  there  prejudicial  error  in  giving,  in  lieu  of  another 
instruction  offered  by  the  prisoner,  the  following  instruction, 
viz. :  "  Although  the  jury  may  believe  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  prisoner  had  illicit  con- 
nection with  the  ])rosecutrix  under  ))romise  of  marriage,  and 
may  have  thought  at  the  time  that  she  was  a  female  of  previ  jus 
chaste  character,  yet  they  must  find  him  not  guilty  if  they  be- 
lieve she  was  unchaste  at  the  time  of  said  seduction."  It  was 
argued  at  the  bar  in  this  connection  that  it  devolved  upon  the 
commonwealth  to  prove  affirmatively,  in  order  to  convict  the 
prisoner,  that  the  prosecutrix  was  of  previous  chaste  character, 
and  that  the  jury  ought  to  have  been  so  instructed.  But  such 
is  not  the  law.  On  the  contrary,  chastity  is  presumed  and  the 
burden  was  on  the  prisoner  to  im))each  it.  J^eojt/e  v.  Chirk, 
33  Mich.  112;  Polk  v.  State,  40  Ark.  482;  State  v.  McClhdw, 
73  Iowa  GG3;  35  N.  W.  (VJ6;  Wilson  v.  State,  73  Ala.  527.  In 
People  V.  Breioer,  27  Mich.  134,  Judge  Cooley,  speaking  for 
the  court,  said :  "  The  last  error  we  shall  notice  is  that  the 
court  erred  in  instructing  the  jury  that  the  law  i)resumes  a 
woman  to  be  chaste  until  the  contrary  is  shown.  We  believe 
this  instruction  to  be  correct.  The  presumption  of  law  should 
be  in  accordance  with  the  general  fact ;  and  whenever  it  shall 
be  true  of  any  country  that  the  women,  as  a  general  fact,  are 
not  chaste,  the  foundation  of  civil  society  will  be  wholly  broken 
up.  Fortunately,  in  our  country  an  unchaste  female  is  com- 
paratively a  rare  exception  to  the  general  rule ;  and  whoever 
relies  upon  the  existence  of  the  exception  in  a  ])articular  case 
should  be  required  to  prove  it."  The  statute,  however,  pro- 
vides (seclion  3679)  that  no  convictions  shall  be  had  upon 
the  testimony  of  the  female  seduced,  unsupported  by  other 
evidence ;  and  it  was  earnestly  contended  at  the  bar  that  the 


STATE  V.  LOCKERBY. 


C17 


conviction  in  the  present  case  is  not  \varranto<l  by  the  evi- 
dence.   The  statutes  of  the  several  states  generally  re(|uire  that 
the  evidence  of  the  woman  be  corroborated  before  a  f()nvicti«}n 
can  be  had;  but  the  statutes  and  decisions  ditfor  as  to  tho  extent 
of  the  corroboration  necessary.    In  some  jurisdictions  every 
material  fact  must  be  corroborated,  wlnlo  in  others  it  is  suf- 
ficient if  the  corroboration  extends  to  the  promise  of  marriage 
and  to  the  intercourse,  or  to  the  promise  alone.     In  Nt;\v  York, 
whoso  statute  is  similar  to  ours,  the  established  rule  is  that  tho 
corroboration  need  extend  only  to  the  promise  and  tho  inter- 
course, and  that  the  supporting  evidence  need  be  such  only 
as  tho  character  of  these  matters  admits  of  being  furnished. 
21  Am.  «&  Eng.  Enc.  Law,  p.  1051,  tit.  "Seduction";  Kvttijun  v. 
People,  26  N.  Y.  203 ;  Anmtromj  v.  Penjyle,  70  N.  Y.  38.    In 
IlaasenjlHek^a  Vase,  85  Va.  702,  it  was  said  that,  to  convict  the 
accused,  the  woman  must  be  corroborated,  but  to  what  extent 
was  not  decided,  because  in  that  case,  there  was,  in  fact,  cor- 
roborating evidence  on  every  point.     And  it  is  unnecessary 
to  decide  the  question  or  to  review  the  evidence  in  the  ])resent 
case,  because,  as  was  pointed  out  at  the  bar,  it  is  not  shown 
by  the  record  that  the  jury  that  tried  the  case  were  legally 
summoned — that  is  to  say,  that  they  were  brought  in  under  a 
writ  of  venire  facias — for  which  essential  defect  in  the  record 
the  judgment  must  be  reversed,  and  the  case  sent  back  for  a 
new  trial ;  the  case  in  this  particular  being  ruled  by  what  was 
decided   in  the  recent  case  of  Meyers  v.  Com.,  DO  Va.  785. 
Judgment  reversed, 
Lacv  and  Fauntleroy,  JJ.,  absent. 


;( 


>'t       1 


t  'I 


State  v.  Lockeeby. 


2. 


(50  Minn.  363.) 
Seduction:  Chastity— Burden  of  proof. 

Under  the  rule  as  eutablished  in  this  state,  in  a  prosecution  for  seduction 
under  a  promise  of  marriage,  the  burden  of  proof  rests  upon  the  state 
to  prove  the  previous  chaste  character  of  the  prosecutrix,  and  her  testi- 
mony must  be  corroborated  by  other  evidence  on  tlie  subject. 

But  such  evidence  may  be  received  as  in  the  nature  of  the  case  reason- 
ably tends  to  establish  the  fact,  and  where  there  is  some  evidence, 


618 


AMERICAN  CRIMINAL  REPORTS. 


thouRli  circumstantial,  tencTing  ttt  support  tha  t(«tiinony  of  the  prose- 
cutrix, tlie  case  is  for  tlie  iury. 
3.  In  vifw  of  tlic  rule  as  to  tht;  burden  of  proof  on  this  qucMtion,  evidence 
of  her  general  reputation  for  chastity  is  admissible  in  corroboration. 

Appotil  from  District  C'/Urt,  Goodhue  County;  Williston, 
Judge, 

Indictment  against  Burt  Lockerby  for  seduction.  From  a 
judgment  on  conviction,  defendant  appeals. 

J.  C  2IcClure,  for  tlio  api)ellant. 

Mo-it's  E.  Clapp  and  S.  J.  Nelson^  for  the  respondent. 

VANnKuiuiKOH,  J.  Indictment  for  seduction  under  promise 
of  marriage.  The  princii)al  question  in  tliis  case  arises  uj)on 
the  introchiction  of  evidence  in  corroboration  of  the  comphiin- 
ing  witness  to  prove  her  previous  chaste  character.  In  several 
of  the  states,  under  similar  statutes,  the  courts  hold  that  the 
natural  ))resumption  being  in  favor  of  the  chastity  of  the 
female,  this  supplies  the  ])lace  of  evidence  in  theilrst  iiistarjce, 
and  no  ])r(>of  is  required  of  her  previous  chaste  character  until 
it  is  assailed.  The  courts  of  other  states,  including  our  own, 
adoi)t  th  !  opposite  rule,  and  this  seems  sup|)orted  l)y  the  better 
reason.  The  presumption  in  favor  of  her  chastity  is  overcome 
by  the  ])res;!mi.tion  of  the  innocence  of  the  defendant,  and  the 
i)urden  rests  upon  the  state  to  ])rovo  the  averment  in  the  in- 
dictnu^nt.  lIV.v/!  v.  <St<tt<;  1  Wis.  2(>!);  CmimonWi'aUh  r.  ||7«V- 
taker,  VM  Alass.  224;  ^fate  v.  Zihndur,  43  N.  J.  L.  IW,);  Pc- 
phi  V.  Itoihi'ttjds,  4!)  Cal.  9;  State  v.  I'hniniDX^  4  Minn.  32;") 
(Gil.  241);  Sfittev.  W,nz,  41  iMinn.  11)7;  1  l!ish.  Or.  I'n...  |<  llUC; 
Jiish.  Stat.  (>.  (2d  ed.)  ^  r.4S.  The  state  is  then  obiigijd  to 
j)roduce  some  evidence  in  supi)ort  of  the  ])revious  chaste  char- 
acter of  tli(^  prosecuting  witness.  IJutonly  such  corroborative 
evidence  is  recjuired  as  in  t!ie  nature  of  the  case  is  obtainable 
— sucii  proof  as  the  fact  is  susi'eptiblo  of  {Ptople,  v.  h'i<irney^ 
110  N.  V.  11)3;  Armstnwj  v.  People,  70  N.Y.  44)— and,  where 
there  is  some  evidence  given  by  corroborating  witnesses  whieh 
supports  tiie  ])rosecutrix,  the  case  is  for  the  jur\'.  It  must  be 
so  suiimitted,  though  it  be  circumstantial  and  apparently  slight 
in  its  chaiJK^ter.  Crandall  v.  l*e<)ph\  2  Lans.  311.  In  the  case 
last  cited  the  fact  that  the  prosecutrix  went  in  good  society 
was  lield  ])ropcr  evidence  i!>at  she  was  of  previous  cljastechar- 


'*j. 


STATE  V.  LOCJKERIJY. 


GIO 


actcr.     In  State  v.  Thnmhis,  4  ]\Iinn.  383  (Gil.  241),  prosecu- 
trix was  shown  to  liavo  boon  a  constant  inmate  in  her  father's 
house,  and   was,  during  the  time,  sou<>ht    in   inarria«>o  by 
another  man.     And  in  Stat<i  v.  liruikhuitH,  ?,x  Minn.  287    the 
girl  went  in  such  society  as  the  neighborhood  afforded  of  the 
social  rank  of  the  family,  and  neiglil)ors  had  never  seen  any- 
thing improper  in  her  conduct.    A  similar  line  of  inijuiry  was 
])ursued  in  this  case,  and  a  stronger  case,  based  on  such  evi- 
dence, was  made  for  the  jury  than  in  the  cases  cited.    The 
evidence  of  the  witness  Hathaway,  for  whom  the  prosecutrix 
worked  for  a  year  previous  to  her  seduction,  shows  that  he 
knew  her  reputation  for  chastity  in  the  community,  and  that 
he  had  never  heard  anything  affecting  the  reputation  or  char- 
acter of  the  girl  except  tlio  matter  on  trial,  and  had  never  seen 
anything   improper    in  her  conduct.     Other  evidence  of  a 
similar  character  was  received.     In  addition  to  this,  the  same 
and  otl-cr  witnesses  were  i)ermitted  and  did  testify  that  her 
g(;neral  reputati(m  for  chastity  in  the  community  wherj  she 
resided  was  good.     The  admission  of  this  evidence  of  her  gen- 
eral reputatioT  is  si>ecially  assigned  as  error.     I  have  a,  o-ood 
deal  of  doubt  wh(!ther  the  evidence  was  competent,  for  the 
reason  that  the  fact  to  be  proved  is  not  the  re])ute  of  the  ijcr- 
son  for  chastity,  but  actual  personal  virtue;  hence,  it  is  said  that 
the  (piestion  being  whetiier  she  is  chaste  in  fact  and  from  prin- 
ciple, and  not  whether  she   is  reputed  to  bo  so,  evidence  of 
r(?j>utation  for  chastity  is  not  competent.     Sfiite  v.  Pi-htr  49 
Iowa  531;  Kanfiunn  v.   People,   11   Hun  (i\.  Y.)  S7.     In  the 
leading  case  of  Keni/on  v.  Pei>jde,  2<i  N.V.  2(>3,  evidence  of  the 
general  bad  reputation  of  the  ])ros(TUtrix  was  held  properlv 
rejecte«l  on  the  ground  above  statiid,  and  in  K(t,iiJ'//in/i  v.  Peo- 
ple, Ki(j)i'<i;  a  cas(!  wliere  the  jirosecution  was  held  bound  to 
prove  the  ])revious  chaste  character  of  the  jn-osecuting  wit- 
ness, the  c<»urt  decided  that  the  rule  must  be  the  same,  as  it 
affects  botli  sides  of  the  question.     Tiio  gcmeral  rule  is,  that 
the  state  can  not  offer  evidence  to  j)rove  the  reputation  of  wit- 
nesses produced   by  it,   for  the  purpose  of  corroborating  or 
strengthening   their  testimony,  unless  the  defense  shall  have 
first  atta<!ketl  their  character.     People  v.  Ilnhe,  3  Hill  3(il>.     I 
think  it  has  not  been  the  usual  ])ractico  to  resort  to  such  evi- 
dence in  j)rosecutions  of  this  kind  in  this  state,  and  this  is  the 


%  I 


mm' 


I 


i  I  r^ 


^■■•l\\    » 


620 


AMERICAN  CRIMINAL  REPORTS. 


V.   »  !' 


first  case  which  has  come  before  us  in  which  it  has  been  at- 
tempted. 

But  my  brethren  are  of  the  opinion  that  the  evidence  was 
proper,  and,  the  following  considerations  may  be  urged  in  sup- 
port of  the  rulings  of  the  trial  court.  As  was  said  by  that 
court  in  its  charge  to  the  jury,  unchastity  in  a  female  is  much 
more  likely  to  ivttract  attention  and  be  talked  about  in  n  ("nj 
munity  than  chastity;   and  if  the  jury  believe,  from  evi- 

dence in  the  case,  that  the  conduct  and  deportment  of  the  com- 
plaining witness  in  the  village  where  she  lived  was  correct  and 
proper,  and  that  up  to  the  date  of  the  alleged  seduction  by 
the  defendant  she  was  not  talked  about  with  regard  to  chastity 
or  unchastity,  that  is  a  circumstance  which  they  are  entitled 
to  consider  in  corroboration  of  the  witness.  That  is  to  say, 
the  evidence  in  such  cases  must  necessarily  be  chiefly  negati so 
in  its  character,  and  hard  to  distinguish  from  that  which  is 
allowed  to  prove  general  reputation.  State  v.  Lee,  22  JMinn. 
409.  In  State  v.  Ilill,  91  Mo.  427,  it  is  suggested  that  the  dif- 
ference in  the  language  of  statutes — "female  of  good  rei)ute'' 
or  of  "  previous  chaste  character" — was  not  such  as  to  call  for 
any  variation  of  the  rules  of  evidence;  and  in  West  v.  State,  1 
Wis.  217,  the  court  say  that  the  very  fact  that  her  chastity 
had  never  been  questioned  wouUl  perha])s  establish  it.  Wiiere 
a  witness  is  acijuainted  with  the  prosecutrix  in  the  community 
wiiere  she  resides,  and  has  never  iieard  anything  to  her  i)i"oju- 
dice,  the  fact  ought  to  be  evidence  in  her  favor,  though  it 
would  be  negative  tcstimon^'^  of  her  general  reputation  in  the 
community;  and  that  would  naturally  be  the  character  of  the 
testimony  in  such  cases.  The  shifting  of  the  natural  order  or 
burden  of  proof,  by  reason  of  the  nature  of  the  olFense  as  do- 
fined  in  the  statute,  substantially  places  her  in  the  name  posi- 
tion as  if  her  character  had  already  been  assailed,  in  which 
case  it  is  well  settled  she  may  intrmluce  evidence  of  general 
reputation.  In  State  v.  Prizer,  49  Iowa  533,  it  is  said  ii  pure 
character  may  not  be  shown  by  reputation,  but  evid(Mice  of 
particular  lewd  conduct  may  be  rebutted  by  proof  of  good 
reputation.  This  is  the  rule  theoretically  stated,  but  ignores 
the  effect  of  the  statute  in  removing  the  ])resumpti(m  of  inno- 
cence; and  it  is  difficult  to  see  any  practical  difference  between 
evidence  of  the  indefinite  or  negative  character  ordinarily 
given  in  evidence  of  reputation,  as,  for  instance,  that  the  prose- 


STATE  V.  LOCKERBY. 


021 


cutrix  was  received  in  good  society,  or  had  good  social  stand- 
ing. From  the  nature  of  the  case,  general  reimtation  must 
be  regarded  as  having  some  relation  to  actual  character,  and 
goes  directly  to  the  question  of  the  probability  of  her  beino- 
chaste.  As  the  law  assumes  all  characters  to  be  good,  they 
must  bo  first  assailed  before  they  can  be  proved  to  be  fi-ood. 
IJut  in  a  case  of  this  kind  the  character  of  the  prosecuti-ix  is 
already  impeached  by  the  fact  of  seduction.  It  is  true,  under 
the  general  rule  as  established,  if  the  defendant  attem])ts  to 
assail  her  character  in  the  first  instance,  he  is  ])ut  upon  the 
proof  of  specific  facts  ti>nding  to  show  unchaste  character,  but 
these  facts  are  susceptible  of  ])roof  by  affirmative  evidence- 
and  tlie  distinction,  if  not  exactly  logical,  is  nevertheless 
grounded  upon  ]>ractical  reasons.  The  court,  theref*  I'c,  holds 
that  the  evidence  was  properly  received.  There  was  no  error 
in  rejecting  evidence  of  subsequent  offers  of  marriage  by  de- 
fendant. It  was  clearly  immaterial,  and  did  not  tend  to  sup- 
port any  deftMise.  Cook  v.  People,  2  Thomp.  &  C.  (N.  Y.)  404. 
The  other  assignments  we  do  not  deem  necessary  to  be  con- 
sidered. 

Onler  affirmed. 


W 


jough  it 


NOTK.  — ir/trt^  co»?s/ (7« /('.<?. —Whorp  consent  is  gi%'on  ponding  a  virtuous 
ongagcmont.  in  conseciuence  of  a  repetition  of  a  promise  to  marry,  already 
made  and  accepted,  tiio  woman  yielding,  in  reliance  on  the  plighted  faith 
of  her  lover,  and  he  intending  that  she  shall  trust  and  he  deceived,  such  a 
case  constitutes  seduction.     Jniivn  v.  Stiitc,  1)0  (ia.  610. 

To  make  love  to  a  virtuous  unmarried  woman,  woo  her,  make  honorahle 
pro|K)sals  of  marriage,  have  them  accepteil.  and  afterward  undo  her  under 
a  solemn  promise  of  marriage,  or  repetition  of  the  engagement  vow,  is  to 
employ  persuasicm  jls  well  <as  promise  of  marriage.     lb, 

Tiie  court  properly  charged  that  if  the  jury  helieved  that  defendant  and 
the  prosecutrix  had  sexual  intercourse  in  the  county  within  four  years 
prior  to  the  time  that  the  indictment  was  found,  and  that  at  the  time  the 
sexual  intercourse  was  first  h.ad  hetween  them  prosecutrix  l>ad  never  had 
sexual  intercoui-se  with  man,  that  they  both  v.  ere  unmarried  at  the  time, 
and  that  she  Wius  induced  to  yield,  either  readdy  or  reluctantly,  to  defend- 
ant, from  persuasicm  and  promises  of  miirri.-.ge,  and  allow  him  to  have  carnal 
knowledge  of  her,  as  a  c(mse(pience  of  pirsuasion  or  promises  of  marringe, 
they  should  find  the  prisoner  guilty  of  seduction.  lb.;  Statev.  Ueeven,  8 
Am.  Cr.  Rep.  09H;  note,  p.  700. 

Sfdnctinn  or  rape. — While  an  indictment  for  seduction  can  not  be  sus- 
tained by  evidence  showing  that  a  rape  was  committed,  the  mere  fact  that 
the  fi'inale  offered  some  slight  resistance  to  the  sexual  intercourse  does  not 
make  the  crime  rape,  when  it  appears  that  she  really  consented  to  the  act, 


'i:     < 


1  i 


022 


AMERICAN  CRIMINAL  REPORTS. 


and  that  the  accused  did  not  have  carnal  knowledge  of  her  forcibly  and 
against  her  will.    State  v.  Reeves,  lb. 

£iu'de>icc. —Corroborative  evidence  in  proof  of  seduction  need  not  be 
direct  and  positive,  or  such  evidence  as  is  sufficient  to  convict,  intlependent 
of  that  of  the  prosecutrix,  but  simply  such  circumstances  as  tend  to  sup- 
port her  testimony,  and  to  satisfy  the  jury  she  is  worthy  of  credit.  Wright 
V.  State,  31  Tex.  Cr.  Ap.  354. 


iMi 


i     I 


1  I 


State  V.  Spears. 

(40  La.  Ann.   1524.) 
Self-Defense:  Homicide. 

If  a  party  kills  another  from  fear  of  death  or  great  Ixxlily  harm,  he  must 
be  free  from  fault  in  bringing  on  the  difficulty,  in  order  to  justify  the 
homicide.  In  cases  of  mutual  combat  l)oth  parties  are  the  aggressors, 
and  if  one  is  killed  it  will  be  mansiaughtor  at  least,  unless  tlie  sur- 
vivor can  prove  that  b  ifora  the  m  )rial  stroke  was  given  he  ha<l  n  - 
fused  any  further  combat,  and  retreated  as  far  as  he  could  with  safety, 
and  that  he  killed  his  adversary  from  necessity,  to  avoid  his  own  de- 
struction, or  greater  l)odily  harm  to  him. 

Where  the  trial  judge  states,  in  his  charge  to  the  jury,  principles  of  law 
applicable  to  the  facta  in  the  case,  he  is  not  re<|uired  to  give  an  addi- 
tional charge,  which  more  specifically  directs  the  attention  of  tlie  jury 
to  the  application  of  the  law  to  particular  facts. 


Appeal  from  District  Court,  parish  of  East  Feliciana;  F. 
D.  Krame,  judge. 
Will  Spears,  convicted  of  manslaughter,  appeals.    Ailirnied. 


W.  F.  Kcrnnn.,  for  appellant. 

M.  J.  Cunningham,.,  Attorney-General,  and  J.  L.  Gohan, 
District  Attorney,  for  the  State. 

McEnerv,  J.  The  accused  was  indicted  for  murder,  and 
convicted  of  manslaughter.  He  appealed.  The  following  bill 
was  reserved  by  accused  to  the  ruling  of  the  trial  ju<lge:  "  Be 
it  remembered  that  on  the  trial  of  this  case  that,  it  havinc  been 
testified  to,  the  accused  and  deceased  had  a  quarrel  at  William 
Stone's,  who  stopped  it.  That  the  deceased  and  the  accused 
afterward,  in  going  along  the  road,  accused  asked  where  Albert 


•ibly  and 

cl  not  be 
I'pendent 
id  to  sup- 
Wright 


n,  lie  must 
justify  the 
gf^roHsors, 
(  the  sur- 
he  li.id  n  - 
itli  safety, 
is  own  de- 

ples  of  law 
.e  an  addi- 
jf  the  jury 


clana;  F. 
\lliniied. 

Golsuii, 


(ler,   and 


>\vi  11(^1)111 


ere: 


vinjr  been 
t  William 
e  accused 
sre  Albert 


STATE  V.  SPEARS. 


02;; 


Hamilton,  the  deceased,  was.  lie  replied,  'Hero  I  am.'  Ac- 
cused said,  'Clear  the  track! '  and  fired  at  deceased.  That  de- 
ceased got  in  some  bushes,  and  the  accused  behind  a  tree.  The 
deceased  then  said  to  accused, '  Why  don't  you  come  out  square 
or  fair,  like  a  man?'  The  accused  said,  'AH  rioht,  then  vou 
come  out  of  the  bushes.'  So  they  both  came  out  in  tiie  road, 
and  came  toward  each  other,  the  accused  still  holding  his  pis- 
tol in  his  hand.  The  deceased  said,  '  I  want  to  know  what  you 
i^ave  got  against  me  ? '  The  accused  said, '  You  got  a  bottle  of 
whisky  from  Mr.  John  Delee  on  my  account,  when  you  had 
no  right  to.'  The  deceased  said,  '  I  did  not  do  it.'  Tlie  ac- 
cused said,  '  If  you  will  go  with  me  to  Mr.  Delce's  in  the 
morning,  I  will  prove  it  on  you.' 

The  accused  testified  that  he  said,  '  Let  us  go  to  ]Mr.  Delee's 
in  the  morning,  and  settle  it  peaceably.'     The  deceased   said, 
'  No,  you  damned  son  of  a  bitch,  we  might  as  well  or  had  bet- 
ter settle   it  now;'  and  put  his  hand  to  his  hip  pocket,   and 
tried  to  draw  his  pistol,  when  accused,  having  his  pistol  in  his 
hand,  shot  him,  from  the  effects  of  which  he  shortly  after- 
ward died.      No  witness  said  that  deceased  drew  his  pistol 
before  he  was  shot."     The  above  testimony  is  given  ])rincipally 
by  the  accused  himself.     In  view  uf  the  above  testimony,   ac- 
cused requested  the  court  to  charge  the  jury  'that  if  tiie  jury 
are  satislled  from  tho  evidence  that  the  accused  withdrew  in 
good  faith  from  the  first  conflict,  and  sought  to  adjust  the 
quarrel  amicably  and  peaceably,  and  if  they  believe  from  the 
evidence  that  the  deceased  made  :»,  hostile  demonstration  to 
kill  or  do  him  some  great  bodily  harm,  that  the  right  of  self- 
defense  revived  in  favor  of  the  accused,  and  that,  to  ])rotect 
himself  from  death  or  serious  bodily  harm,  he  was  justified  in 
killing  the  deceased."     The  court  refused  to  give  the  above 
charge  es])ecially  to  the  jury,  for    the  reasons  that  the  re- 
quested charge  was  too  restrictive,  and  was  calculated  to  con- 
fuse and  mislead  the  jury,  and  that  ho  had  already  charged  on 
this  point,  so  far  as  applicable  to  this  case.     In    the  general 
charge    tho   judge   gave  the  following  as  applicai)le  to    the 
facts :    "  But,  if  the  assaulted  i)arty  is  in  fault,  he  is  bound 
to  retreat  as  far  as   he  can  safely  do  so.     lie  is  re(iuired  to 
decline  the  combat  in  good  faith,  and,  if  he  uses  all  the  means 
in  his  power  to  escape,  even  killing  in  self-defense  is  lawful. 


IffS 
w  .■■■•  I 


:f 


!' 


ii 


M 
m 


624 


AMERICAN  CRIMINAL  REPORTS. 


m 


But  if  a  man  seeks  to  bring  on  a  difficulty',  and  slays  liis  ad- 
versary, lie  can  not  avail  himjelf  of  the  plea  of  self-defense." 

In  the  case  of  State  v.  Thompson,  45  La.  Ann.  970,  relied 
upon  by  defendant,  the  trial  judge  refused  to  charge  the  jury 
as  to  the  law  applicable  to  the  facts  as  recited  in  the  bill. 
Analyzing  the  charge  of  the  trial  judge  and  the  charge  re- 
quested, tliey  are  practically  the  same;  the  latter  only  differing 
from  the  former  in  more  specifically  directing  the  jury's  at- 
tention to  good  faith  in  defendant's  withdrawing  from  the 
first  conflict,  and  his  belief  in  the  imminent  peril  in  which  his 
life  was  placed,  or  to  the  great  bodily  harm  which  menaced 
him.  The  trial  judge  correctly  gave  the  law  to  the  jury  on 
the  good  faith  required  from  defendant  in  withdrawing  from 
the  conflict,  and  the  law  of  self-defense  when  the  assaulted 
])arty  is  in  fault,  and  the  means  he  must  employ  to  avoid 
the  homicide,  and  the  law  ap])licable  to  the  facts,  when  a  per- 
son brings  on  a  difficulty  and  slays  his  adversary.  These 
several  statements  of  the  law  in  the  general  charge,  we  think, 
were  applicable  to  the  facts  as  disclosed  in  the  bill.  If  the 
defendant  acts  from  the  fear  of  death  and  great  bodily  harm, 
and  kills  another,  he  must  be  free  from  fault  in  bringing  on 
the  difficulty.  Kerr,  Horn.  201.  In  cases  of  mutual  combat 
both  parties  are  the  aggressors,  and  if  one  is  killed  it  will  be 
manslaughter  at  least,  unless  the  survivor  can  prove  that  be- 
fore the  mortal  stroke  was  given  he  had  refused  anv  further 
combat,  and  retreated  as  far  as  he  could  with  safety,  and 
that  lie  killed  his  adversary  from  necessity  to  avoid  his  own 
destruction  or  great  bodily  harm  to  him.  Kerr,  Horn.  203 ; 
Peopfe  V.  SidUmn,  8  N.  Y.  396;  ILxhjes  v.  State,  U  Ga.  117  ; 
Stewart  V.  State,  1  Ohio  St.  Or. ;  State  v.  Clements,  32  Mo.  279 ; 
S/iorter  ".  People,  2  N.  Y.  193;  State  v.  Welfs,  i  N.  J.  Law, 
42-1;  BIflv.  State,  25  Ala.  15;  State  v.  Yarhrough,  1  Hawks, 
78  ;  State  v.  TncJcett,  Id.  210;  Sel/nxlfje  Case,  Ilorr  &  T.  (Jas.  3; 
State  V.  Chandhr,  5  La.  Ann.  489. 

The  facts  recited  in  the  bill  show  that  the  accused 
brought  on  the  first  difficulty,  and  what  transpired  fol- 
lowed so  soon  after  the  assault  of  the  accused  uj)on  de- 
ceased that  practically  it  was  one  entire  transaction.  The 
invitation  of  deceased  to  accused  to  come  into  the  road, 
and  fight  out  the  difficulty,  when  he  was  in  hiding  to 
protect  himself  from  the  assaults  of  deceased,  was  a  continua- 


STATE  V.  SPEARS. 


C2: 


1  his  a<l- 
enso." 
),  relied 
he  jury 
he   bill, 
irgo  re- 
littering 
rv's  at- 
om  the 
lich  his 
menaced 
jury  on 
ig   from 
issaultcd 
to   avoid 
en  a  per- 
These 
ve  think, 
If  the 
ly  harm, 
^ing  on 
[  combat 
;  will  be 
that  be- 
'   further 
ety,   and 
his  own 
om.  203 ; 
Ga.  117: 
Me.  279 ; 
J.   Law, 
Hawks, 
T.  Cas.  3; 

accused 
ired  fol- 
ujwn  de- 
)n.  The 
the  road, 
liding  to 
continua- 


tion of  the  conflict.  Accused's  acce;)tance  of  this  invitation, 
at  best,  could  l>e  but  a  challenge  to  mutual  combat.  The  facts 
stated  in  the  bill  slirnv  that  the  accused  offered  to  o-o  the 
next  morning,  and  prove  the  charge  he  made  against 
accused,  and  to  settle  the  difficulty  amicably.  On  tiie  facts 
stated  in  the  bill,  the  charge  that  the  defendant  was  "  required 
to  decline  the  combat  in  good  faith,  and,  if  he  uses  all  the 
means  in  his  power  to  escape,  even  killing  in  self-defense  is 
lawful,"  we  think  sufiiciently  applied  to  the  facts  recited. 
The  right  of  self-dufense  is  a  natural  instinctive  ri^-ht  ineverv 
human  being,  and  rests  upon  ai)parent  reasonable  necessity 
to  preserve  one's  person  from  violence.  If  there  be  such  an 
actual  physical  attack  as  to  afford  reasonable  grounds  to  be- 
lieve that  the  design  is  to  destroy  life,  or  do  great  bodily  in- 
jury upon  the  person  assaulted,  the  killing  in  such  case  will 
be  justifiable  homicide  in  self-defense.  Uut  the  accused  must 
be  withimt  fault  in  having  i)rovoked  the  difficulty  by  an  as- 
sault upon  the  deceased.  AVhat  is  sufiicient  justification  to 
commit  the  homicide  depends  always  upon  the  particular  facts 
in  the  case  and  tiic  surroundings  of  the  parties.  We  are  of 
the  opinion  that  the  general  charge  embraces  the  law  appli- 
cable to  the  facts  in  this  case,  and,  under  it,  the  jury  could 
find,  if  the  facts  justified  it,  an  application  of  the  law  to  the 
theory  of  the  defense  as  stated  in  the  bill :  Tluit  the  defend- 
ant quit  tlie  combat  in  good  faith,  and  sought  to  adjust 
the  difficulty ;  that  the  deceased  made  a  hostile  demonstra- 
tion against  the  accused  ;  that  the  right  of  self-defense  revived 
in  his  favor  ;  and  that  he  killed  the  deceased  from  the  neces- 
sity to  avoid  his  own  destruction. 

The  other  objection  to  the  charge,  that  that  part  of  it  refer- 
ring to  the  reasonable  doubt  was  misleading,  is  without  merit, 
as  the  charge  on  this  part  is  full,  and  almost  identical  with 
the  language  in  the  text-lxjoks.  The  motion  for  a  new  trial 
utges  nothing  which  was  not  bofort*  \hv  jury  and  passed  upon 
by  them.  When  the  trial  judge  states,  in  his  charge  to  the 
jury,  primnples  of  law  applicable  to  tlie  facts  in  the  case,  we 
are  not  dispos^jd  to  find  fault  witii  liis  rojoolion  of  a  special 
charge  recpuisted  by  defendant,  which  more  specifically  directs 
the  attention  of  the  jury  to  the  application  of  the  law  to  par- 
ticular facts.  Judgment  affirmed. 
40 


it 

i4 


f 


,  I 


C26 


AMERICAN  CRIMINAL  REPORTS. 


State  v.  HAiiRisoir. 


(36  W.  Va.  729.) 

Separation  of  Jury:  MiHcomUtct— Preconceived  opinions— Sanity  of  ac- 
cused— IrreHtsiible  impulse. 

1.  A  mere  separation  of  a  jury  will  not  entitle  the  person  to  anew  trial;  but 

where  there  has  been  an  iniproi)er  separation  of  the  jury  duriu}^  the 
trial,  if  the  verdict  is  against  the  jn-isoner,  he  is  entitled  to  the  benefit 
of  the  presumption  that  such  He[)aration  has  Iwen  prejudicial  to  hiin, 
and  the  burden  of  proof  is  u\)on  the  state  tt)  show  beyond  a  reasonable 
doubt  that  the  prisoner  has  suffered  no  injury  by  reason  of  the  separa- 
tion.    If  the  i)rosecution  fails  to  do  this,  the  verdict  will  be  set  aside. 

2.  Tlie  same  rule  Sliould  be  applied  to  all  cawes  of  misconduct  or  irregularity 

by  the  jury,  during  the  trial,  which  are  of  such  a  character  as  to  raise 
a  presumption  that  the  prisoner  was  prejudiced  thereby. 

3.  The  testimony  of  jurors  may  be  rt^ceivcd  to  disprove  or  explain  any  such 

separation,  misconduct  or  irregularity;  but  their  t»>stimony  will  not  be 
received  to  show  by  what  motive  they  were  actuated,  or  that  any  ad- 
mitted fact,  misconduct,  or  irregularity,  had  no  influence  or  effet^tupon 
their  minds  in  producing  the  verdict.  In  any  case,  where  proper  at  all, 
the  testimony  of  jurors  should  be  received  with  great  caution. 

4.  Mere  business  conveixation  by  a  juror  with  another  pereon,  entirely  for- 

eign to  the  case  on  trial,  in  the  presence  and  hearing  of  the  sheritT  and 
the  other  jurors,  will  not  avoid  the  verdict. 

5.  To  set  aside  a  verdict  because  of  an  opinion  entertaincil  by  a  juror  before 

lie  w!i«  sworn,  it  ought  to  api)ear  that  such  opinion  was  n<»t  merely  un- 
substantial and  hypt)thetical,  but  such  as  would  have  excluded  him 
from  the  jury  had  it  been  known  l)efore  he  was  sworn. 

6.  A  court  must  see  reasonable  ground   to  doubt  the  sanity  of  a  person 

al>out  to  be  tried  for  felony  before  impaneling  a  jury  to  inquin>  as  lo 
his  sanity.  The  court  may  inspt-ct  and  examine  the  prisoner,  consider 
his  action  and  demeanor,  read  aflidavits.  inquire  of  physicians  and  othei-s 
touching  his  then  mental  condition.  The  <lecision  of  the  trial  cotut 
will  have  a  very  weighty,  if  not  conclusive,  influence  in  the  appellate 
court,  and  will  not  be  reversed,  if  at  all.  unU'ss  it  very  numifcstly  ap- 
pears that  the  decision  was  wrong,  or  that  the  court  abused  the  discre- 
tion lodged  with  it  by  the  statute. 

7.  A  person  partially  insane  is  yet  resjwnsible  for  a  criminal  act  if,  at  the 

time  of  the  act,  he  knows  right  from  wrong,  and  knows  the  nature  and 
character  of  the  particular  act  and  its  consttiuences,  and  knows  that  it 
is  wrong  and  is  hurtful  to  another,  and  deserves  punishment.  In  such 
case  no  mere  irresistible  impulse  to  do  the  act  will  exempt  him  from 
criminal  responsibility  for  such  act. 

Error  to  Circuit  Court,  Cahell  (bounty. 
Allen  Harrison  was  convicted  of  murder,  and  brings  error. 
Affirmed. 


STATE  V.  HARRISON.  027 

Marcnm,  Peyton  c&  Marcurn^  for  ])laintiff  in  error. 
Alfred  Caldwell,  Attorney-General,  for  the  State. 

Bkannon,  J.     On  the  14th  day  of  April,  18l»2,  Allen  Harri- 
son was  sentenced  to  death  by  the  circuit  court  of  Cabell 
county  for  the  murder  of  JJettie  Adams,  and  he  comes  to  this 
court  for  relief  from  that  sentence.    Should  the  verdict  be  set 
aside  because  of  separation  of  the  jury  i    Between  12  and  1 
o'clock  at  night  a  juror  rose  from  his  bed,  and  went  to  the 
water  closet  of  the  hotel  where  the  jury  boarded,  to  answer  a 
call  of  nature.     The  deputy  sheriff  in  charge  of  the  jury  un- 
locked the  door  of  the  room  wherein  the  juror  sle))!,  and  went 
with  him  into  the  hall  leading  to  the  closet,  and  saw  that  no 
one  was  in  the  hall,  and  saw  that  the  door  of  the  closet  was 
open,  and  saw  no  one  in  the  closet,  and  says  no  one  was  in  it, 
though  there  was  a  portion  of  the  closet— the  two  apartments 
containing  the  bowls — which  he  could  not  see  from  where  he 
stootl ;  and  the  juror  walked  down  the  hall  forty  or  iifty  feet  to 
the  closet,  the  sheriff  returning  to  l)ed,  but  listening,  and  the 
juror  remained  absent  from  four  to  eight  minutes,  ami  returned 
to  the  room.     There  were  some  rooms  along  the  hall  towards 
the  closet,  occupied  perhajis  by  others,  one  by  the  high  sheriff. 
Without  regard  to  the  statements  of  the  juror,  it  does  not  in  any 
manner  appear  that  this  juror  mingled  with,  saw,  talked,  or  had 
any  sort  of  communication  with  any  persons   while  absent. 
The  fact  that  it  was  at  the  dead  hours  of  the  night,  that  the 
hall  was  clear  of  ])ersons,  and  that  the  apartment  to  which  the 
juror  went  was  not  like  the  public  rooms  of  an  hotel,  but  a 
water-closet,  render  it  highly  improbable  that  the  juror  met  or 
conversed  with  any  one.     In  all  the  Virginia  and  AVest  Vir- 
irinia  cases   where   verdicts  have  been  set  aside  on  account 
of  separation  of   the  jury,   it  a])peared  that  the  juror,  dur- 
ing the  separati(m,   mingled  and  talked  with  other  persons, 
or  had   ready  oi)portunity  to  do  so.      I  hardly  think   that 
where   it  safely  appears  that  the  juror  has    no  communica- 
tion, nor  opportunity  for  it,  the  mere  separation,  if  we  can 
call  it  "separation"  in  a  legal  sense,  would  vitiate  a  verdict. 
But  if  we  can  read  and  credit  the  statement  of  the  juror  in 
question,  then  the  fact  that  he  had  no  intercourse,  or  oppor- 
tunity for  it,  with  any  other  person,  will  not  depend  simply 
on  the  probability  arising  from  the  facts  above  stated;  for  he 


■V.Z 


iilli 


I': 


Uv    ; 


NP«P 


C,2S 


AMERICAN  CRIMINAL  REPORTS. 


states  that  ho  noithor  spokn  to  nor  saw  any  onq  wliilo  so  al)- 
sjnt.  That  wo  canconsidor  tho  juror's  statomont  is  sliown  Uy 
the  sylhihus  and  opinion  in  Sfatc  v.  C<tr(irrt';//it.2{)  \V.  Va.  IV2. 
and  instances  in  Vir;^inia  cases  therein  cited  (|)a<ye  4:J),  which 
are  bindin«j  on  us,  in  which  atH(hivits  of  jurors  were  received. 
We  can  not  read  that  portion  of  thealliihivit  wherein  tiie  juror 
states  that  he  did  not  go  to  tho  chjsot  for  any  iin)»roper  pur- 
pose connecte<l  with  the  trial,  and  that  his  al)sence  had  no  in- 
fluence upon  his  verdict,  hut  we  can  read  its  statement  that  lie 
met  with  no  one,  saw  no  one,  talke<l  with  no  one.  There  is  no 
showing  in  the  slightest  degree  to  the  contrary;  and  if  we  give 
this  alHdavit  any  weight,  corrol)orated  ami  rendered  ])robal>ly 
true  by  the  othei*  circumstances  sjjoken  of,  we  nuist  be  satis- 
tied  that  its  statements  are  true.  Would  it  not  l>e  a  sti<rma 
and  reproach  upon  the  administration  of  criminal  law  to  re- 
verse a  solemn  trial  for  such  a  cause,  we  i)eing  confident  that 
ti)e  prisoner  suffere«l  no  iiarm  from  the  occurrence^  Se|>arii- 
tion  merely  does  not  necessarily  annul  a  v(M"diet;  it  does  so 
only  j>r!/ii<tf<h'it'.  Two  Virginia  cases  are  spoken  of  as  hold- 
ing that  sejjaration  pt'r  xt-  annuls  the  verdict — McCaitPH  Case, 
1  Va.  Cas.  271, and  Ort'rho'n  C<(n<\  1  Kob.  (Va.)  750.  I*erhai)s  1 
may  add  Worinhijx  (.'(t-si',  8  (Jrat.  712,  though  .ludge  Rives,  in 
J*/i>'fh'j>'i'  Gdxe,  11)  (irat.  511,  says,  ])erhaps  correctly,  that  it  is 
not  to  be  interpreted  as  so  holding. 

In  none  of  these  cases  is  there  any  reasoning  by  the  court, 
except  in  McCyauPs  case,  and  in  it  Judge  N(^lson,  after  saying 
that  the  (me  view  of  the  subject  was  that  the  law  recjuired  the 
jury  to  be  kept  entirely  inaccessible,  so  that  communication 
with  them  would  be  impossible,  and  the  other  view  was  that 
mere  se])aration,  unless  it  be  )n'<)ved  that  there  has  been  some 
conversation  or  tampering  with  a  member  of  the  jury,  shall 
not  vitiate  a  verdict,  and  there  must  be  ])r(tof  to  work  this 
elfect,  disclaims  a  <lecisi(m  of  the  general  principle,  saying  the 
court  was  not  called  (Hi  to  decide  between  the  two  views.  an«l 
would  decide  only  whether  the  separation  in  that  particular  case 
shouhl  overthrow  the  verdict.  Jiut  later  and  well-considered 
cases  hohl  that  mere  separation  will  not  y>f7'  xe  impair  a  ver- 
dict. Stiite  V.  Curtirriijlit,  20  W.  Va.  82;  State  v.  A*oh!n.so)»,  Id. 
713;  T/io»ipmt):xCitx.,S(h'iit.  (137;  PhiJUpti'  Case,  IJ)  Grat.  485; 
ItcCartev''K  Cane,  11  heigh,  033.  Even  in  the  old  Cam  of 
ThomoH,  2  Va.  Cas.  475),  the  doctrine  that  separation  per  se  is 


STATE  V.  IIAUUISON. 


iM\V\ 


02'.) 


fatal  to  the  verdict  is  repelled,  and  what  is  pointedly  appli- 
cable  to  this  case,  it  was  held  that  "  the  bare  imssibility  of 
tain|)enng  with  the  jury  is  not  sutHeienttosetasidea  verdict;" 
and  Jud^re  Dade  said  :  "But  we  think  we  have  shown  that  in  this 
case  there  was  a  bare  ])ossibility  of  such  coiisecpionce,  and  wo  do 
not  think  ourselves  justitied,  on  account  of  a  remote  p()ssil)ilitv 
to  obstruct  the  justice  of  the  country  in  a  case  where  we  can  not 
doubt  that  the  prisoner  has  received  no  injury."  So  wo  mav 
say  in  this  case  that  the  possibility  of  any  ci)nnnuni('ati()n  of 
the  juror  with  a  soul  is  very  remote,  it  being  almost  al)solutely 
certain  that  he  had  not,  and  we  are  confident  the  defendant 
sull'ered  no  harm  from  the  occurrence.  The  rule  tobededuced 
from  these  cases  is  that  a  mere  separation  of  the  jury  will  not 
entitle  the  ])erson  to  a  new  trial;  but  where  there  has  been  an 
improper  si^paration  he  is  entitled  to  the  benefit  of  the  pre- 
sumption that  it  was  prejudical,  and  the  burden  is  on  the 
state  to  show  l)eyond  reasonable  doubt,  that  he  sulFered  no 
injury.  Sf<ite  v.  Rohhmni  supm,  State  v.  Cartiorhjht,  mpra. 
This  rule  is  an  ample  safeguard  over  the  purity  of  a  jury  trial; 
any  other  rule  wouhl,  as  Judge  Thompson  said  in  Tliompmhn 
Cme,  supra,  in  these  days,  when  criminal  trials  and  adjourn, 
ments  in  them  are  so  numerous  and  protracted,  result  in 
frequent  miscarriages  in  trials,  and  delay  and  defeat  the  ends 
of  justice,  when  there  is  not  the  slightest  presnm])tion  or 
probability,  or  even  possibility,  of  injustice  to  the  ))risoner.  It 
clearly  appears  that  in  this  case  he  sulfered  no  harm.  While 
we  niustat  all  times  guard  the  rights  of  the  accused,  we  must 
not  bo  so  technical  in  procedure  as  to  overturn  fair  trials  for 
mere  shadows,  thus  bringing  criminal  justice  into  endless  delav 
and  public  derision. 

Another  occurrence  relied  npon  to  annul  the  verdict  is  this: 
The  sheritt  in  charge  of  the  jury  had  them  in  a  public  room  of 
the  hotel,  and  allowed  a  juror  to  converse  with  two  persons, 
one  a  notary,  touching  the  execution  of  a  deed.  The  sheriff 
and  a  deputy  were  present,  within  eight  to  ten  feet  of  the  juror, 
when  ho  met  these  persons  and  signed  the  deed.  He  saw  the 
deed.  The  evidence  of  these  two  persons,  the  sheriff  and  the 
juror,  shows  clearly  that  nothing  whatever  touching  the  trial 
took  place,  and  there  was  no  conversation  about  anything 
save  the  mere  signing  and  acknowledging  the  deed,  which 
occupied   three  to  five  minutes,  including  the  drafting  of  the 


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> 


,^o 


y 


630 


AMERICAN  CRIMINAL  REPORTa 


i 


H 


I 


-ii 


certificate  of  acknowleclgment.  The  otlier  jurors  were  right 
at  hand.  Tliere  was  no  low  conversation.  Every  one  could 
seo  the  deed  spread  out  on  the  table,  and  hear  the  conversa- 
tion. This  is  no  separation  of  the  jury.  Tlie  sheriffs  were 
present,  and  other  members  of  the  jury  also,  and  this  juror  was 
in  charge  of  the  officers.  While  it  is  reprehensible  in  a  sheriff 
in  charge  of  a  jury  to  allo'v  converstition  or  transaction  of 
business  between  jurors  and  other  persons,  yet  this  instance 
does  not  constitute  misconduct  in  a  juror  in  a  legal  sense,  such 
as  to  impair  the  verdict.  We  might  almost  as  well  say 
that  conversation  at  table  between  jurors  and  waiters,  the 
sheriff  being  present,  though  ten  or  fifteen  feet  away,  and  not 
hearing  such  conversation,  would  impair  the  verdict.  In  Kcn- 
nedt/^s  Case,  2  Va.  Cas.  510,  one  of  the  jurors  called  to  a  friend 
from  the  window  to  send  a  message  to  his  family,  and  to  get  his 
watch,  though  the  sheriff  did  not  hear  the  conversation,  and  it 
was  held  not  cause  for  setting  aside  the  verdict.  So  in  Thomas' 
case,  ftvpra,  a  juror,  in  presence  of  the  sheriff,  but  separate  from 
the  other  jurors,  called  to  a  neighbor  and  sent  a  message  to  his 
family,  and  it  was  held  not  sufficient  to  affect  the  verdict. 
Wonaley's  Case,  8  Grat.  712,  cited  to  support  this  objection,  does 
not  do  so,  for  there  the  sheriff  left  the  room  several  times,  re- 
maining out  from  five  to  ten  minutes  each  time,  lea  ring  three 
persons  in  the  room  with  the  jury,  who  conversed  freely  and 
drank  spirits  with  the  jury,  but  had  no  conversation  as  to  the 
trial,  while  here  the  sheriffs  were  present  in  the  room. 

Should  the  verdict  be  set  aside  because  Ward,  one  of  the 
jurors,  said,  before  he  was  put  on  the  jury,  that  if  the  jury 
should  return  a  verdict  that  Harrison  was  insane  the  jury 
ought  to  be  hung,  and  that  Harrison  ought  to  be  hung  ?  In 
the  fii*st  place,  we  do  not  know  but  that  the  opinion  of  the 
juror  so  expressed  was  a  merely  hypothetical,  unsubstantial 
opinion  based  on  mere  rumor,  and  not  such  as  to  have  disquali- 
fied him  had  it  been  known  when  he  was  questioned  on  his 
voire  dire,  for  the  mere  fact  that  a  juror  has  expressed  an 
opinion  does  not  necessarily  disqualif}'  him.  State  v.  ScJmelle, 
2 J:  W.  Va.  767,  and  State  v.  Baker,  SS  W.  Va.  319.  The  Vir- 
ginia general  court  very  long  ago  held  that  declarations  by 
jurors  that  the  prisoner  was  doomed  to  the  penitentiary,  and 
that  he  ought  to  be  hung,  would  not  call  for  a  new  trial;  the 
court  saying  that  it  did  not  appear  the  juror  had  a  deliberate 


-u« 


vere  right 

one  coukl 

conversa- 

eriffs  were 

s  juror  was 

n  a  sheriff 

saetion  of 

s  instance 

sense,  such 

well  say 

aiters,  the 

y,  and  not 

In  Kcn- 

to  a  friend 

id  to  get  his 

tion,  and  it 

in  Thomas' 

mrate  from 

ssage  to  his 

;he  verdict. 

ection,  does 

x\  times,  re- 

'a.'ing  three 

I  freely  and 

)n  as  to  the 

)m. 

,  one  of  the 
t  if  the  jury 
nethe  jury 
hung?  In 
•inion  of  the 
nsuhstantial 
ave  disquali- 
ioned  on  his 
sxpressed  an 
<3  V.  ScJinell'e, 
.  The  Vir- 
iarations  bv 
entiary,  and 
iw  trial;  the 
a  deliberate 


STATE  V.  HARRISON. 


631 


opinion.  SmiWa  and  Kennedi/s  Cases,  2  Va.  Cas.  6,  510. 
Likely  the  juror  in  this  case  was  giving  vent  to  mere  idle 
declarations,  not  real  opinion.  But,  in  the  second  place,  it  is 
settled  by  many  cases  that  a  new  trial  will  not  be  granted  for 
matter  that  is  principal  cause  of  challeng3,which  existed  before 
the  juror  was  sworn,  but  which  was  unknown  to  the  prisoner 
until  after  the  verdict,  unless  it  appears  from  the  whole  case 
that  the  prisoner  suffered  injustice  from  the  fact  that  the  juror 
sarvod  in  the  casa.  Gi'aers  Case,  22  W.  Va.  802 ;  State  v.  Stmu- 
der,  11  W.  Va.  74.5;  State  v  McDonald,  9  W.  Va.  456,  and 
Virginia  cases  there  cited.  In  Greer's  case  the  jury  said  the 
prisoner  ought  to  be  hung,  but  it  was  not  cause  for  a  new 
trial.  And,  in  the  third  place,  the  juror  denies  that  he  made 
any  such  statement.  There  is  nothing  to  show  that  the  pris- 
oner suffered  injustice  from  the  presence  of  Ward  on  the  jury, 
and  the  circuit  court  judge  was  of  opinion  tliat  he  had  not; 
and,  under  the  many  cases  holding  the  doctrine  above  stated, 
we  must  hold  this  no  cause  for  setting  aside  the  verdict. 

Did  the  court  err  in  refusing  to  continue  the  case  ?  An  af- 
fidavit made  by  the  prisoner's  father  stated  that  Dr.  Erwin 
had  been  a  long  time  the  attending  physician  of  the  prisoner, 
and  that  Erwin  had  told  affiant  that  the  ])risoner's  mind  was 
disordered  and  unbalanced;  that  he  told  him  what  function  of 
the  brain  was  disordered,  and  the  cause  of  the  disorder ;  and  that 
Erwin  lived  in  Tennessee  and  aflHant  regarded  his  testimony 
as  material,  and  did  not  know  of  any  witness  by  whom  the 
same  facts  couhl  be  shown;  that  Erwin  removed  from  Cabell 
county  five  years  before  that  time,  and  affiant  did  not  know  of 
his  whereabouts,but  that  his  whereabouts  could  be  ascertained. 
The  affidavit,  while  stating  that  affiant  did  not  know  of 
any  witness  by  whom  the  same  fact  stated  by  Erwin  could  be 
proven,  does  not  state  that  affiant  had  made  inquiry  to  learn 
whether  he  could  do  so  or  not.  He  certainly  knew  what 
physicians  had  attended  his  son.  The  range  of  inquiry  was 
confined  to  a  few  physicians  in  the  neighborhood,  Erwin  had 
been  absent  five  years,  and  no  place  in  Tennessee  is  named  as 
his  residence,  and  his  whereabouts  are  unknown.  Was  there 
any  certainty  of  ever  getting  his  deposition?  In  Wilhclm  v. 
People,  72  111.  468,  and  Dacey  v.  People  1 16  111.  555,  it  was  held 
that  where  a  continuance  is  asked  because  of  the  absence  of  a 
non-resident  witness,  the  affidavit    must   state,  not  only  the 


I 


•  ''''Fill 
'  '  "If 


(1 


T^S^*  ' 


632 


AMEMCAN  CRIMINAL  REPORTS. 


party's  belief  that  his  attendance  can  be  procuretl,  but  also 
the  grounds  of  such  belief,  so  that  the  court  may  see  whether 
there  is  a  reasonable  ground  for  the  expectation  that  his  evi- 
dence can  be  procured ;  and  without  such  statement  the  affida- 
vit is  defective.  It  is  different  from  a  resident  witness.  It 
was  also  held  that  a  continuance  will  not  be  granted  where 
the  evidence  is  only  cumulative,  unless  it  be  shown  there  will 
be  conflict  of  evidence.  Furthermore,  a  physician  who  treated 
the  prisoner  for  masturbation,  and  stated  that  in  his 
opinion  the  prisoner  was  affected  with  a  form  of  insanit}', 
^''melancholia,^"  was  introduced  as  a  witness  for  the  defense, 
and  the  father  and  many  others  gave  evidence  for  the  ))risoner 
upon  the  only  defense  made  by  the  prisoner — that  of  insanity — 
and  there  was  on  both  sides  a  large  volume  of  evidence  upon 
that  question ;  and  all  this  enables  us  to  say  that  the  question 
of  the  prisoner's  sanity  was  fully,  fairl}'  and  elaborately  pre- 
sented to  the  jury,  and  that  the  evidence  of  the  witness  Erwin, 
if  attainable,  would  have  been  only  additional  or  cumulative; 
and  we  can  not  see  with  any  certainty  that  its  absence  was 
detrimental,  or  could  have  been  detrimental,  to  the  prisoner's 
cause;  and  therefore  we  have  under  this  head  only  to  apply 
the  rule  of  law,  well  settled  in  this  court,  that  a  motion  for 
continuance  is  addressed  to  the  sound  discretion  of  the  court, 
under  all  the  circumstances  of  the  case;  and  though  an  appel- 
late court  will  supervise  the  action  of  the  inferior  court,  and 
reverse  it  where  it  has  ruled  a  party  into  trial  when  he  was  en- 
titled to  a  continuance,  yet  it  will  not  reverse  on  that  ground 
unless  such  action  was  plainly  erroneous.  The  judge  i)resid- 
ing  sees  all  the  surroundings  of  the  trial,  and  can,  better  than 
we,  decide  whether  the  design  of  the  motion  for  a  continuance 
is  delay,  or  whether  a  continuance  is  really  essential  to  a  fair 
and  proper  trial.  It  is  not  without  force  to  add  that  the  stat- 
ute (Code,  c.  1.51),  g  1)  commands  a  trial  at  the  same  term  at 
which  the  indictment  is  found,  unless  gowl  cause  be  shown 
for  continuance.  Fiottv.  CV>//?.,  12  Grat.  576;  JIearitfsCa.se, 
17Grat.627;  BettmlPs  Cimc,  II  \V.  Va.  703;  Davis  v.  Walker, 
7  W.  Va.  447;  JiiisUr  v.  Holland,  27  W.  Va.  511. 

Did  the  court  err  in  failing  to  impanel  a  jury,  before  trial  of 
the  prisoner's  guilt,  to  inquire  as  to  his  stmity  when  called  to 
trial?  Code,  c.  159,  §§  9,  10,  provide  that  no  one  while  insane 
shall  be  tried  for  crime,  and  that,  if  the  court  see  reasonable 


but  also 
wliether 
t  his  evi- 
he  aifivla- 
iiess.      Ifc 
d   where 
here  will 
lo  treated 
;    in  his 
insanity, 
defense, 
prisoner 
nsanity — 
nee  upon 
question 
itely  pre- 
!ss  Erwin, 
mulative; 
sence  was 
prisoner's 
to  apply 
lotion  for 
the  court, 
an  appel- 
)(>urt,  and 
16  was  en- 
iit  ground 
E^e  ))resid- 
3tter  than 
mtinuanco 
to  a  fair 
t  the  stat- 
ic term  at 
be  shown 
rltffi  C((.sc, 
V.  Wa/l't'i; 

ire  trial  of 
I  called  to 
lile  insane 
'easonable 


STATE  V.  HARRISON. 


cca 


ground  to  doubt  his  sanity,  the  trial  shall  be  suspended  until  a 
jury  inquire  of  his  sanity.  That  feature  of  the  statute  which 
forbids  a  trial  while  the  party  is  insane  is  only  declaratory  of 
the  common  law.  as  was  held  of  a  similar  statute  in  Frennan 
V.  People,  4  Denio,  9;  for  Blackstone  says:  "If  a  man  in  his 
sound  memory  commit  a  capital  offense,  and  before  arraign- 
ment for  it  becomes  mad.  he  ought  not  to  be  arraigned  for  it, 
bacause  he  is  notable  to  plead  coit  with  that  advice  and  caution 
that  he  ought."  4  Bl.  Comm.  24;  1  Hale,  P.  C.  34;  -2  Bish. 
Crira.  Proc.  §  dQQ;  1  Chit,  Grim.  Law,  761.  While  at  common 
law,  in  capital  cases,  it  svas  the  more  usual  course,  when  it  a|>- 
peared  that  the  sanity  of  the  accused  was  doubtful,  to  incpiire 
touching  it  by  a  Jury,  yet  ins|iection  of  the  accused  by  the 
judge  without  a  jury  was  allowable.  2  Bish.  Grim.  Proc. 
§  G«U>;  1  Hawk,  P.  C.  3,  note;  1  Hale,  P.  C.  33;  Freeman  v. 
People,  supra;  Bonds  v.  State,  Mart.  &  Y.  142.  But  our  statute 
has  in  the  latter  respect  changed  the  common  law  by  requiring, 
when  the  court  sees  reasonable  ground  to  doubt  the  sanity  of 
the  accused,  that  the  question  of  his  sanity  shall  be  tested  by 
a  jury. 

Next  comes  the  question  whether,  upon  a  mere  suggestion 
of  present  insanity,  or  even  when  it  is  supported  by  aiiidavit, 
the  judge  is  compelled  to  order  a  jury,  even  when  he  is  satis- 
fied that  the  accused  is  feigning  insanity  to  avoid  trial,  or  is 
competent  to  make  a  proper  defense.  At  common  law,  I 
think,  the  jury  inquest  was  simply  to  inform  the  conscience  of 
the  court.  The  case  of  Wehher  v.  Com.,  119  Pa.  St.  223,  was 
upon  a  statute  providing  that,  "  if  any  person,  upon  arraign- 
ment, be  found  a  lunatic  by  a  jury  lawfully  impaneled  for  the 
purpose,"  he  should  be  kept  until  capable  of  trial,  thus  grant- 
in""  him  a  jury  upon  the  question  of  his  sanity;  and  it  was 
held  that  such  inquiry  by  a  jury  could  only  be  had  when  the 
judge  has  doubts  res]wcting  the  sanity;  that  such  inquest  may 
be  had  at  the  discretion  of  the  judge,  for  the  purpose  of  in- 
forming his  conscience  whether  the  trial  ought  to  proceed,  but 
that  the  defendant  is  not,  as  a  matter  of  legal  right,  entitled 
to  such  jury;  and  that  the  question  of  sanity,  both  at  the  date 
of  the  offense  and  trial,  was  before  the  jury  on  the  trial  of  the 
main  issue,  and,  after  a  conviction,  finding  that  he  was  and  is 
sane,  the  api^ellate  court  would  not  inquire  whether  the  dis- 
cretion of  the  inferior  court  was  properly  exercised  in  refusing 


■"■*'■'■■     \ 

i'\^ 

:      4\\ 

m  \ 

W 

GBi 


AMERICAN  CRIMINAL  REPORTS. 


a  jury  for  a  preliminary  inquiry  as  to  sanity.  The  court  said 
that  neither  the  suggestion  of  the  prisoner  or  his  counsel  nor 
affidavits  could  alone  suffice  to  create  the  doubt  necessary  to 
ordering  a  jury;  that  tliey  are  necessarily  addressed  to  the 
court,  as  there  is  no  other  tribunal  to  entertain  them,  and  it  is 
the  court  which  must  be  atfected  by  considerations  supposed 
to  produce  the  doubt  which  must  precede  the  inquiry;  that  a 
personal  inspection  of  the  prisoner,  public  or  private,  inquiry 
from  physicians  and  those  around  the  accused,  might  be  re- 
sorted to;  all  these  and  others  may  contribute  to  create  doubt 
in  the  mind  of  the  judge,  and  for  that  reason  all  might  be 
resorted  to;  and  if,  after  all  had  transpired,  the  judge  has  no 
doubt  of  the  prisoner's  sanity,  he  is  neither  bound,  nor  ought 
he,  to  oi'der  a  jury.  It  is  his  judicial  conscience  alone  that  is 
to  be  satisfied.  So  it  was  held  to  be  a  matter  of  sound  discre- 
tion with  the  judge  in  Joncfi  v.  State,  13  Ala.  157,  and  State  v. 
Arnold,  12  Iowa,  483,  and  that  the  inquiry  should  not  be 
allowed  if,  from  all  the  circumstances,  the  court  had  no  ground 
to  doubt  the  prisoner's  sanity.  Gitafjando  v.  State,  41  Tex. 
620,  is  to  the  contrary.  From  the  letter  of  our  statute,  and 
the  reason  and  public  policy  pertinent  to  the  subject,  the  de- 
cision of  the  judge  must  have  a  very  weighty,  if  not  decisive, 
influence ;  though  in  case  of  abuse  of  discretion,  I  should  think 
it  remediable.  The  judge  saw  the  prisoner  face  to  face,  and 
scannetl  his  countenance,  his  demeanor  and  actions,  and  saw 
all  the  surroundings  of  the  t;  '.  as  we  can  not  see  them,  and 
was  far  more  competent  to  say  whether  the  prisoner  was  in  a 
state  of  mind  fit  to  undergo  a  trial,  or  was  simply  seeking  de- 
lay, than  are  we.  AVho  was  better  able  to  puss  on  the  (juostion  ? 
There  was  no  showing  of  his  insanity  beyond  the  affidavit  of 
his  father  that  he  was  not  mentallv  in  a  condition  to  undergo 
trial,  and  it  did  not  allege  his  insanity,  though  I  make  no  point 
as  to  this.  We  can  not,  on  appeal,  overrule  the  circuit  judge  on 
this  matter.  We  do  not  see  that  he  abused  the  discretion 
lodged  with  him  by  the  statute.  We  see  only  the  affidavit  of 
the  prisoner's  father  against  the  judge's  action,  and  see  noth- 
ing of  the  important  evidence  present  to  the  judge,  and  mov- 
ing him  to  his  action. 

Is  there  error  in  giving,  at  the  state's  instance,  the  following 
instruction :  "  The  court  instructs  the  jury  that  if  they  be- 
lieve from  the  evidence  beyond  a  reasonable  doubt  that  the 


STATE  V.  HARRISON. 


C35 


ourt  said 
unsel  nor 
essaiy  to 
id  to  the 
,  nnd  it  is 
supposed 
•y;  that  a 
3,  inquiry 
[jlit  be  re- 
ate  doubt 
might  be 
ge  has  no 
lor  ought 
no  that  is 
nd  discrc- 
id  State  V. 
ihl  not  le 
no  ground 
41  Tex. 
itute,  and 
ct,  the  de- 
t  decisive, 
ould  think 
)  face,  and 
,  and  saw 
them,  and 
r  was  in  a 
coking  de- 
ll uostion  'i 
dlidavit  of 
io  undergo 
:o  no  point 
it  judge  on 
<liscretion 
ittidavit  of 
1  see  noth- 
,  and  mov- 

!  following 
if  they  be- 
>t  that  the 


prisoner,  at  the  time  of  firing  the  shot  or  shots  which  caused 
the  death  of  Bettie  Adams,  w.»s  capable  of  knowing  the  nature 
and  consequences  of  his  act,  and,  if  he  did  know,  then  that  he 
knew   he  was  doing   wrong,  and  that  so  knowing  he  fired 
the  shot  or  shots  at  the  deceased  with  the  wilful,  deliberate, 
and  premeditated  purpose  of  killing  her,  they  will  find  the 
prisoner  guilty  of  murder  in  the  first  degree."    The  criticism 
upon  it  is  that  it  makes  the  test  of  criminal  accountability 
turn  on  the  capacity  to  know  right  from  wrong,  and  a  knowl- 
edge that  the  accused  knew  the  particular  act  Avas  Avrong,  a 
principle  propounded  by  early  decisions ;  whereas,  the  modern 
law  does  not  make  this  the  only  test,  but  couples  with  the 
"  right  and  wrong "  test  the  power  of  choosing  between  the 
two,  and  the  power  of  the  will  over  the  actions ;  that  though 
the  accused  had  capacity  to  know  right  from  wrong,  and  knew 
the  particular  act  was  wrong,  and  knew  the  nature  and  conse- 
quences of  that  act,  yet  if,  by  reason  of  mental  disease,  he  had 
not  iiie  power  to  choose  between  the  right  and  wrong,  and 
had  not  power  to  resist  doing  the  act,  he  should  not  beheld  re- 
sponsible. Even  if  this  theory  be  granted,  the  above  instruction 
is  not  bad ;  for,  in  addition  to  its  requiring  for  conviction  that 
the  accused  must  have  been  able  to  know  the  nature  and  con- 
sequence of  the  act,  and  that  he  was  doing  wrong  in  commit- 
ting it,  the  instruction  also  requires  that  the  act  was  wilful, 
deliberate,  and  premeditated.     If  wilful,  his  will  must  have 
entered  into  his  act ;  if  deliberate  and  premeditated,  it  was  the 
result  of  reason  and  reflection,  of  will  and  thought  concurring, 
not  of    irresistible  impulse.     To  do  a  wilful,  deliberate  and 
premeditated  act  one  must  have  reasoning  powers,  and  the 
power  to  exercise  the  will  to  refrain  from  the  act  or  commit 
it ;  not  a  mere  momentary  impulse.    Defendant's  instruction 
7  told  the  jury  that  "  a  premeditated  design  or  purpose  is  one 
resulting  from  thought  and  reflection.    A  design  conceived, 
and  afterwards  so  deliberately  considered  as  to  become  resolved 
and  fixed  in  the  mind,  is  regarded  by  law  as  premeditated." 
So  in  requiring  the  act  to  be  wilful,  deliberate  and  premedi- 
tated, it  logically  required  will  power,  and  capacity  to  exercise 
it  and  to  avoid  the  act.    But  its  theory  is  wrong  for  reasons 
below  given. 

Is  there  error  in  refusing  instruction  17:    "That,  in  order 
to  constitute  a  crime,  a  man  must  have  inte)i'>ence  and  capacity 


1 ';.■■• 
Ik'':' 

■     •     I 

',  i 

1 

1 

030 


AMERICAN  CRIMINAL  REPORTS. 


enough  to  have  a  criminal  intent  and  purpose,  and  if  his  reason 
and  mental  powers  are  either  so  deficient  that  he  has  no  will, 
no  conscience,  or  controlling  mental  ])ower,  or  if,  through  the 
overwhelming  violence  of  mental  disease,  his  intellectual  power 
is  for  the  time  obliterated,  he  is  not  a  responsible  moral  agent, 
and  is  not  punishable  for  criminal  acts."  If  we  concetle  it  to 
be  correct,  then  we  say  that,  as  the  court  in  defendant's  in- 
struction 15  told  the  jury  definitely  that  insanity  was  a  full 
legal  defense,  and  gave  instructions  KJ  and  18,  they  gave  the 
prisoner  the  benefit  of  the  principle  of  the  instruction  as  effectu- 
ally as  if  that  instruction  had  been  given,  and  the  prisoner 
suffered  no  harm  from  its  refusal.  The  instruction  is  obscure 
in  meaning. 

Is  til  ore  error  in  refusing  instruction  21:  "The  court  in- 
structs the  jury  that  a  man  may  have  reason  and  intelligence 
sufticiont  to  enable  him  to  distinguish  and  know  the  difference 
between  right  and  wrong.  He  may  know  that  the  jict  he  is 
about  to  commit  is  wrong;  and  yet,  if  from  defect,  weakness, 
or  disease  of  the  mind,  he  is  incapable  of  controlling  his  acts 
and  of  resisting  the  impulse  to  commit  the  act,  then  the  act, 
however  great  a  crime  it  may  be,  is  not  a  wilful  act,  and 
therefore  not  criminal.  Therefore,  if  the  jury  believe  that, 
although  the  prisoner,  Allen  Harrison,  at  the  time  of  the  com- 
mission of  the  alleged  crime,  knew  it  was  wrong,  yet  if  the 
jury  believe  and  are  satisfied  from  the  evidence  in  this  case 
that  his  will  power  was  so  impaired  by  disease  or  otherwise  as 
to  render  him  incapable  of  controlling  his  acts  or  resisting  the 
impulse  so  to  do,  then  the  killing  of  Bettie  Adams  under  such 
circumstances  was  not  the  wilful  aet  of  the  prisoner,  and  he 
should  not  be  held  criminally  responsible  therefor."  This  in- 
struction re(iuires  us  to  say  whether  it  proposes  a  proper  legal 
test  of  criminal  responsibility.  It  is  based  upon  the  theory 
above  mentioned,  thsit  though  a  person  have  capacity  to  know 
right  from  wrong,  and  to  know  that  the  particular  act  is 
wrong,  yet  if  he  has  not  will  power  to  avoid  the  act,  if  he  is 
instigated  to  it  by  uncontrollable  impulse,  he  is  not  criminally 
liable;  and  that  the  "  right  and  wrong  "  test  is  not  the  proi)er 
test,  as  it  excludes  the  effect  of  uncontrollable  impulse.  It  is 
conceded  that  this  instruction  is  not  good  under  the  criminal 
law  as  stated  in  the  earlier  text  books  and  decisions,  but  it  is 
claimed  that  it  is  sustained  by  the  later  and  better  decisions 


m 


STATE  V.  HARRISON. 


637 


jis  reason 
3  no  will, 
ough  the 
lal  power 
ral  agent, 
cede  it  to 
tlant's  in- 
ivas  a  full 
gave  the 
IS  effectu- 
prisoner 
is  obscure 

court  in- 
telligence 
ililferenco 
;  act  he  is 
weakness, 
g  his  acts 
1  the  act, 

act,  and 
ieve  that, 
f  the  coni- 
yet  if  the 
1  this  case 
herwise  as 
sisting  the 
inder  such 
er,  and  he 
This  in- 
'oper  legal 
ihe  theory 
;y  to  know 
liar  act  is 
et,  if  he  is 
criminally 
the  pro})er 
ilse.  It  is 
le  criminal 
IS,  but  it  is 
'  decisions 


and  text  writers.  Lords  Coke  and  Ilale  wrote  that  to  exoner- 
ate from  crime  on  account  of  insanity  a  man  must  be  totally 
deprived  of  memory  and  understanding ;  and  Justice  Tracy, 
on  Arnold's  trial  in  1721  (16  St.  Trials,  6t)5),  said  he  must  be 
one  totally  de])rive(l  of  memory  and  understanding,  and  doth 
not  know  what  he  is  doing,  no  more  than  an  infant,  a  brute, 
or  wild  beast.  These  statements  are  not  recognized  in  their 
fullness  in  later  years,  yet  in  modern  cases  the  courts  have 
generally  stated  the  question  of  responsibility  to  be  whether, 
at  the  time  the  prisoner  committed  the  act,  he  had  mental 
capacity  to  know  right  from  wrong,  and  comprehended  his 
relations  to  others,  and  to  understand  the  nature  and  conse- 
quence of  the  particular  act,  and  that  the  act  was  morally 
Avrong,  or,  what  is  the  same,  whether  he  was  conscious  of  doing 
wrong.     1  Bish.  Crim.  Law,  §  475. 


This  is  the  "right  and 


Avrong 


test,  as  commonly  called. 


It  has  had  for  a  long  time,  and  has  to-da}-^,  the  sanction  of  the 
most  eminent  legal  authority,  those  best  acquainted  with  the 
real  and  practical  demands  of  the  daily  administration  of 
justice,  as  best  suited  to  it,  all  things  considered,  and  as  at 
once  the  safest  rule  for  the  protection  of  human  life  and  the 
preservation  of  those  charged  with  crime.  In  1843,  in  answer 
to  questions  propounded  by  the  house  of  lords  as  to  crimes 
committed  by  persons  aflFected  with  insane  delusions  in  re- 
spect to  one  or  more  particular  persons  or  subjects,  and  what 
were  proper  questions  to  be  submitted  to  a  jury  in  such  case, 
and  in  what  terms  the  question  should  be  left  to  the  jury  as  to 
the  prisoner's  state  of  mind  at  the  time  of  the  act,  the  judges 
of  England  laid  down  these  principles :  That  a  person  labor- 
ing under  partial  delusions  only  is  nevertheless  punishable  "  if 
he  knew  at  the  time  of  committing  such  crime  he  was  acting 
contrary  to  law;"  and  "  that  the  jury  ought  to  be  told  in  all 
cases  that  every  man  is  presumed  to  be  sane,  and  to  possess 
sufficient  reason  to  be  responsible  for  his  crimes,  until  the  con- 
trary be  proved  to  their  satisfaction;  that  to  establish  the  de- 
fense of  insanity  it  must  be  clearly  proved  that  at  the  time  of 
committing  the  act  the  party  accused  was  laboring  under  such 
a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know 
the  nature  and  quality  of  the  act  he  was  doing;  or,  if  he  did 
know  it,  that  he  did  not  know  he  was  doing  what  was  wrong. 
The  mode  of  putting  the  latter  part  of  the  question  to  the  jury 


U\m 


638 


AMERICAN  CRIMINAL  REPORTS. 


on  these  occasions  has  generally  been  whether  the  aocusod,  at 
the  time  of  doing  the  act,  knew  the  difference  Iwjtween  right 
and  wrong,  which  mode,  though  rarely,  if  ever,  leading  to  any 
mistake  with  the  jury,  is  not,  as  we  conceive,  so  accurate, 
when  put  generally  and  in  the  abstract,  as  when  put  with  ref- 
erence to  the  party's  knowledge  of  right  and  wrong  in  respect 
to  the  very  act  with  which  he  is  charged."  1  Russ.  Crimes, 
19;  2  Greenl.  Ev.  §  373,  and  note. 

These  answers  of  the  judges  are  based  on  the  "  right  and 
wrong  "  test,  and,  though  sometimes  criticised,  they  have  pre- 
vailed in  England  since  1813.  They  do  not  recognize  the  doc- 
trine of  irresistible  impulse  as  an  independent  element  of  tost. 
In  New  York,  in  ISiT,  in  Fi'eeman  v.  People,  4  Denio,  5),  these 
answers  of  the  English  judges  were  recited  as  the  law  as  it 
should  be  given  to  the  jury,  and  it  was  said  that  in  murder 
trials,  where  insanity  is  the  defense,  "  the  inquiry  is  always  to 
be  brought  down  to  the  single  question  of  a  capacity  to  dis- 
criminate between  right  and  wrong  at  the  time  when  the  act 
was  committed."  In  Flanagan  v.  People,  52  N.  Y.  4r)7,  the 
law  was  again  affirmed  as  set  forth  by  the  English  judges,  and 
the  doctrine  of  uncontrollable  impulse,  as  co-existent  with  a 
perception  of  the  moral  quality  of  the  acts  done,  was  rejected 
as  a  "  new  element,"  the  court  saying :  "  We  are  asked  to  in- 
troduce a  new  element  into  the  rule  of  criminal  responsibility 
in  cases  of  alleged  insanity,  and  to  hold  that  the  power  of 
choosing  right  from  wrong  is  as  essential  to  legal  responsi- 
bility as  the  capacity  of  distinguishing  it,  and  that  the  absence 
of  the  former  is  consistent  with  the  presence  of  the  latter. 
The  argument  is  on  the  theory  that  there  is  a  form  of  insanity 
in  which  the  faculties  are  so  disordered  and  deranged  that  a 
man,  though  he  perceives  the  moral  quality  of  his  acts,  is  un- 
able to  control  them,  and  is  urged  by  some  mysterious  press- 
ure to  the  commission  of  the  act,  the  consequences  of  which 
he  anticipates,  but  can  not  avoid.  Whatever  medical  or  scien- 
tific authority  there  may  be  for  this  view,  it  has  not  been  ac- 
cepted by  courts  of  law.  The  vagueness  and  uncertainty  of 
the  inquiry  which  would  be  opened,  and  the  manifest  danger 
of  introducing  the  limitation  claimed  into  the  rule  of  responsi- 
bility, in  cases  of  crime,  may  well  cause  courts  to  pause  before 
assenting  to  it.  Indulgence  in  evil  passions  weakens  the  re- 
straining power  of  the  will  and  conscience,  and  the  rule  sug- 


■i'\\ 


STATE  V.  HARRISON. 


039 


locnsod,  at 
veen  ri^ht 
ing  to  any 
accurate, 
b  with  ref- 
ill respect 
3S.  Crimes, 

right  and 
have  pre- 
ze  the  dec- 
ent of  test, 
io,  0,  these 
B  hiw  as  it 
in  murder 
always  to 
ity  to  dis- 
len  the  act 
Y.  4(57,  the 
udges,  and 
mt  with  a 
'as  rej(>cted 
isked  to  in- 
sponsibility 
(  power  of 
il  responsi- 
the  al)sence 
the  hitter, 
of  insanity 
iged  that  a 
acts,  is  un- 
pious  ])ress- 
)s  of  which 
3al  or  scien- 
lot  been  ac- 
iertainty  of 
if  est  danger 
of  responsi- 
>ause  before 
tens  the  re- 
6  rule  sug- 


gested would  be  the  cover  for  the  coniniission  of  crime  and  its 
justification.  The  doctrine  that  a  criminal  act  may  be  ex- 
cused upon  the  notion  of  an  irresistible  impulse  to  commit  it, 
whore  the  offender  has  the  ability  to  discover  his  legal  and 
moral  duty  in  respect  to  it,  has  no  place  in  tiio  law.  Rolfe, 
B.,  in  Rogers  v.  Allunt,  where,  on  a  trial  for  poisoning,  the  de- 
fendant was  alleged  to  have  acted  under  some  moral  influence 
which  he  could  not  resist,  said  :  "  iivery  crime  was  committed 
under  an  influence  of  such  a  description;  and  the  object  of  the 
law  was  to  comjwl  jieople  to  control  this  influence."  The  New 
York  court  laid  down  the  law  to  be  that "  the  test  of  responsi- 
bility is  the  capacity  of  defendant  to  distinguish  between  right 
and  wrong  at  the  time  of  and  in  respect  to  the  act  complained 
of,"  and  that  "  the  law  does  not  recognize  a  form  of  insanity 
in  which  the  capacity  of  distinguishing  right  from  wrong 
exists  without  the  power  of  choosing  between  them."  Later, 
in  People  v.  Carpenter^  102  N.  Y.  238,  this  doctrine  is  again 
held.  In  18S9,  the  South  Carolina  suj  reme  court  held  that 
"mere  irresistible  impulse  to  commit  murder  by  reason  of 
mental  derangement  at  the  time  of  the  act  is  not  a  defense,  as 
long  as  the  accused  knew  the  act  he  was  committing  was  a 
crime  morally,  and  punishable  by  law."  State  v.  Ale.eander, 
30  S.  C.  74. 

In  the  debate  in  the  house  of  lords  upon  the  answers 
of  the  fourteen  judges  of  England  to  the  questions  pro- 
pounded by  the  house  of  lords,  Lord  Brougham  said,  that  if 
the  perpetrator  knew  what  he  was  doing;  if  he  had  taken  pre- 
caution to  accomplish  his  purpose;  if  he  knew,  at  the  time  of 
doing  the  desperate  act,  that  it  was  forbidden  by  law — that 
was  his  test  of  sanity,  and  he  cared  not  what  judge  had  given 
another  test,  he  should  go  to  his  grave  believing  it  was  the 
real,  sound,  and  consistent  test.  I  fully  concur  Avith  Lord 
Brougham.  In  Jieg.  v.  Barton,  3  Cox  Crim.  Cas.  278,  that 
great  jurist.  Baron  Parke,  said  the  single  quee'ion  was  whether, 
at  the  time  of  the  act,  the  prisoner  knew  the  nature  and  char- 
acter of  the  deed,  and,  if  so,  whether  he  knew  he  was  doing 
wrong;  and  further  said  that  he  concurred  with  the  view  pre- 
viously taken  by  Baron  Rolfe  that  the  excuse  of  an  irresistible 
impulse,  co-existing  with  the  full  possession  of  the  reasoning 
powers,  if  allowed  as  a  defense,  might  be  urged  in  justification 
of  every  crime,  for  every  man  might  be  said  not  to  commit 


.!  i*  ■ 


040 


AMERICAN  CRIMINAL  REPORTS. 


IM 


'  t 
'I'l 

4  ■ 


1,  ■  J 


crime  except  under  the  influence  of  some  irresistible  impulse; 
that  soinuthins^  more  than  this  was  necessary  to  justify  ac- 
quittal on  the  j^rouml  of  insanity;  and  it.  would  be  for  the 
jury  to  say  whether  the  impulse  under  which  the  priscmer  had 
conunittcd  the  <leed  was  one  which  altogether  deprived  him 
of  knowledge  that  he  was  doing  wrong.  In  U.  S.  v.  //olmefi, 
1  Clif.  98,  Mr.  Justice  Clifford  pointedly  rejected  the  "  irre- 
sistible impulse  "  test,  after  a  review  of  the  cases.  lie  said 
that  it  had  been  suggested  that  the  rule  in  the  state  courts 
was  different  from  the  English  rule,  but  that  his  examination 
had  led  him  to  the  conclusion  that  the  great  majority  of  the 
well-considered  cases  followed  the  English  judges;  and  on 
another  i)age  he  says  all  the  well-considered  cases  in  both 
countries  since  1843  followed  their  answers.  He  said  that,  in 
case  of  partial  insanity,  it  is  a  question  for  the  jury  to  deter- 
mine, under  all  the  evidence,  whether  the  degree  of  insanity  is 
sufficient  to  constitute  a  valid  defense;  "and  if  it  appears  that 
'he  mind  of  the  accused  is  mereh'  clouded  and  weakened,  but 
is  not  incapable  of  reasoning  and  judging  between  right  and 
wrong  in  resiiect  to  his  own  particular  act,  that  he  still  under- 
stands the  nature  and  character  of  the  act  and  it4cons3quences, 
and  has  a  knowledge  that  it  is  wrong  and  criminal,  and  mental 
power  sufficient  to  api)ly  that  knowledge  to  his  own  case,  and 
to  know  that  if  he  does  the  act  he  will  do  wrong  and  deserve 
punishment,  then  the  law,  on  that  state  of  facts,  properly  re- 
gards the  accused  as  a  moral  agent,  responsible  for  his  crim- 
inal acts,  and  punishable  for  the  crime;  and  to  admit,  in  such 
a  case,  that  the  defense  may  be  set  up  successfully  that  he  was 
impelled  to  the  commission  of  the  act  by  any  uncontrollable 
or  irresistible  impulse,  would  be  to  overlook  and  disregard  the 
test  or  criterion  of  responsibility  for  criminal  acts  which  the 
law  itself  establishes  in  such  a  ciise,  and  to  allow  that  de- 
fense in  justification  of  every  crime  known  to  the  law." 

Courts  have  to  ask  themselves  what  is  meant  by  that  in- 
sanity which  excuses  from  crime  because  of  incapacity  to 
entertain  criminal  intent.  The  infinite  and  intricate  phases  of 
disorders  of  the  mind  are  interesting,  and  their  study  neces- 
sary in  that  noble  science  which  gives  relief  in  the  most  dis- 
tressing and  saddest  of  human  ailments,  and  which  in  our  days, 
unlike  the  days  of  Shakespeare,  can  "minister  to  a  mind  dis- 
eased, pluck  from  the  memory  a  rooted  sorrow,  raze  out  the 


0  impulse; 
justify  ao- 
)e  for  tlio 
isoner  luul 
rived  him 
V.  I/olmes, 

the  "  irre- 
Ile  snid 
ate  courts 
cami  nation 
rity  of  the 
i;  and  on 
IS  in  both 
lid  that,  in 
y  to  deter- 
insanity  is 
ppears  that 
ikened,  but 

right  and 
still  under- 
iS3quences, 
and  mental 
n  case,  and 
ind  deserve 
)rojierly  re- 
»r  his  crim- 
nit,  in  such 
that  he  was 
controllable 
isregard  the 
s  which  the 
•w  that  de- 
law." 

by  that  in- 
capacity  to 
te  phases  of 
tndy  neces- 
le  most  dis- 
in  our  days, 
» a  mind  dis- 
raze  out  the 


STATE  V.  HAUUISON. 


641 


written  troubles  of  the  bruin."  r>ut  the  law  is  not  a  metn- 
pliysieal  or  theoretical  science;  it  must  follow  principles  suit- 
able to  the  practical  wants  of  men  in  organized  society  by  pro- 
tecting against  heinous  crime.  Mr.  Justice  Curtis,  in  U.  S.  v. 
McGhie,  1  Curt.  9,  a(lo])te(l  the  "right  and  wrong"  test  as 
the  test  which  the  law  applied,  and  said  these  were  the  ques- 
tions for  the  jury  :  "  Did  tlie  prison,  r  understand  the  nature 
of  the  act  wiien  ho  stabbed  Mr.  Johnson?  Did  ho  know  he 
was  doing  wrong,  and  would  deserve  punishment?  Or,  to 
apply  them  more  nearly  to  this  oase,  did  the  prisoner  know 
that  he  was  killing  Mr.  Johnson;  that  to  do  so  was  criminal 
and  deserving  punishment  ?  If  so,  he  lad  the  criminal  intent 
necessar}''  to  convict  him  of  murder,  and  can  not  bo  acquitted 
on  the  ground  of  insanity." 

The  "irresistible  impulse"  test  has  been  poinfodly  rejected 
also  in  Missouri  in  State  v.  PageUp  92  Mo.  300,  the  court  say- 
ing : "  It  will  be  a  bad  day  for  this  state  when  uncontrollable  im- 
pulse shall  dictate  a  rule  of  action  to  our  courts."  It  has  been 
specifically  rejected  twice  in  Kansas— aS^^/^?  v.  Nixon,  32  Kan. 
205;  State  v.  Mowry,  37  Kan.  369;  and  in  North  Carolina  in 
State  V.  Brandon,  8  Jones,  (N.  C.)  463.  See  4  Amor.  &  Eng. 
Enc.  Law.  718.  Mr.  Bishop  does  not  regard  this  test  as  adopted, 
for  in  1  Grim.  Law,  §  475,  ho  says  the  "right  and  wrong"  test 
is  the  one  generally  applied  by  the  courts;  and  in  section  478 
he  says  that  it  is  understood  in  science,  and  sometimes  recog- 
nized in  courts,  though  judges  are  slow  to  yield  on  the  point, 
that  the  mental  and  physical  machine  may  slip  the  control  of 
the  owner,  and  so  a  man  may  be  conscious  of  what  he  is  doing, 
and  its  criminal  character  and  consequences,  while  yet  he  is 
impelled  onward  by  a  power  irresistible.  But  he  says  this  is 
not  the  rule  of  the  courts.  In  Illinois,  in  two  cases,  it  is  held 
as  to  the  defense  of  irresistible  impulse  that  it  must  proceed 
from  an  unsound  mind  affected  with  insanity  "  to  such  a  de- 
gree as  to  create  an  uncontrollable  impulse  to  do  the  act  by 
overriding  his  reason  and  judgment."  IIopps  v.  People,  31 
III.  391;  Pacet/  v.  People,  116  III.  555.  In  other  words,  the 
party,  because  of  insanity,  knew  not  the  wrong  of  the  act. 
The  California  supreme  court,  in  People  v.  Iloin,  62  Cal.  120, 
held  that  aii  irresistible  impulse  to  commit  a  criminal  act 
"  does  not  absolve  the  actor,  if  at  the  time,  and  in  respect  to 
the  act,  he  had  the  power  to  distinguish  between  right  and 
41 


i  1 

Mi 

i"''' 
■^i 

642 


AMERICAN  CRI3IINAL  REPORTS. 


wrong, 


In  Maine,  an  instruction  based  substantially  upon  it 
was  hold  to  have  been  properly  rejected.  State  v.  Lawrence, 
57  Mo.  577,  581.  The  cases  are  almost  without  number 
which,  while  not  passing  on  the  " irresistible  impulse"  test, 
expressly  yet  logically  exclude  it,  because  they  la}'  down  the 
"  right  and  wrong "  test  above  stated.  See  note  to  State  v. 
Marler,  30  Amer.  Dec.  407;  note  to  Gmteau''s  Case,  10  Fed. 
Rep.  195.  The  "right  and  wrong"  test  was  ap])roved  in  the 
Guitei'u  case.  In  a  few  states  the  "irresistible  imindse"  test 
is  upheld.     See  notes  just  cited. 

The  case  of  Parsons  v.  State,  81  Ala.  577,  is  cited  to  us  ns 
one  of  the  best-considered  cases  supporting  this  rule,  holding 
that,  though  there  be  a  capacity  to  distinguish  between  right 
and  wrong,  as  applied  to  the  particular  act,  still  the  party  is 
not  responsible  if  by  reason  of  tlurcss  of  mental  disease  he  has 
so  far  lost  the  power  to  choose  between  right  and  wrong  as 
not  to  avoid  doing  the  act,  so  that  his  free  agency  was  at  the 
time  destroyed,  and  at  the  same  time  the  crime  was  so  con- 
nected with  such  mental  disease,  in  relation  of  cause  and  elFect, 
as  to  have  been  the  product  or  offspring  of  it  solely.  A  dissent- 
ing o]iinion  of  great  ability  was  filed  to  that  decision,  and  it  over- 
ruled a  decision  to  the  reverse  in  Alabama  in  Bosweirs  Ca^c, 
63  Ala.  C07.  So,  also,  Siiilth  v.  Com.,  1  Duv.  224.  So,  also, 
held  the  Indiana  court  in  Stevens  v.  State,  31  Ind.  4S5. 

The  opinion  in  the  last  case  plants  this  decision  on  the  opin- 
ion of  Chief  Justice  Shaw  in  Com.  v.  Rogers,  7  ^[otc.  (Mass.) 
500.  It  struck  me  that  the  opinion  of  Chic;  Justice  Shaw  not 
only  did  not  support  this  view,  but  supported  the  "  right  and 
wrong  "  test;  and  I  find  that  Mr.  Justice  Clifford  concurs  in 
this  view  by  citing  Chief  Justice  Shaw's  opinion  in  sup])ort  of 
the  "  rijrht  and  wrong"  test  in  U.  S.  v.  Holmes,  sifj)ra.  Chief 
Justice  Shaw  said,  as  to  cases  of  partial  insanity,  the  rule  of  law 
is  this :  "  A  man  is  not  to  be  excused  from  responsibility  if  he 
has  capacity  and  reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong  as  to  the  particular  act  he  is  then 
doing;  a  knowledge  and  consciousness  that  the  act  is  wrong 
and  criminal,  and  will  subject  him  to  punishment.  In  order  to 
be  responsible,  he  must  have  sufficient  power  of  memory  to 
recollect  the  relation  in  which  he  stands  to  others,  and  in 
which  others  stand  to  him,  and  that  the  act  he  is  doing  is  con- 
trary to  the  plain  dictates  of  justice  and  right,  injurious  to 


y  upon  it 
Lawrence, 

number 
Iso"  test, 
lown  the 

iStata  V. 

10  Fed. 
ed  in  the 
ulse  "  test 

to  us  as 

e,  holding; 

een  right 

le  party  is 

ase  he  has 

wrong  as 

vas  at  the 

as  so  con- 

and  elFect, 

A  dissent- 

^nd  it  over- 

veWs  Case, 

So,  also, 

•n  theopin- 
'tc.  (Mass.) 
3  Shaw  not 
"  ri<:ht  and 
concurs  in 
sup])ort  of 
)ra.  Chief 
rule  of  law 
ibility  if  he 
distinguish 
lie  is  then 
ct  is  wrong 
In  order  to 
memory  to 
2rs,  and  in 
oing  is  con- 
njurious  to 


STATE  V.  HARRISON. 


04y 


others,  and  a  violation  of  the  dictates  of  duty.  On  the  con- 
trary, althc'igh  he  may  be  laboring  under  partial  insanity,  if 
he  still  understands  the  nature  and  cliaractor  of  his  act  and  its 
consequences ;  if  he  has  a  knowledge  that  it  it  is  wrong  and 
criminal,  and  a  mental  jiower  sufficient  to  apply  that  knowl- 
edge to  his  own  case,  and  to  know  that  if  he  does  the  act  he 
will  do  Avrong,  and  receive  punishment — such  partial  insanity 
is  not  sufficient  to  exempt  him  from  the  responsibility  for 
criminal  acts."  The  words,  "mental  power  suHieiont  to  apply 
that  knowledge  to  his  own  case,"  mean  only  capacity  to  apply 
his  knowledge  of  right  and  wrong  to  the  particular  act  so  as 
to  know  whether  it  is  wrong.  The  judge  did  not  mention  will 
power.  I  can  not  see  how  the  eminent  Chief  Justice  Shaw  can 
be  quoted  on  this  statement  of  the  rule,  as  favoring  the  "irresist- 
ible impulse"  test.  The  eminent  Chief  Justice  Dillon  is  quoted 
as  approving  this  test  in  State  v.  Felter,  25  Iowa  67,  wliereas 
his  opinion  can  not  be  so  regarded.  He  did  say  the  "  riglit  and 
wrong"  test  shouUl  not  be  ap-plied  too  strictly  in  all  cases.  He 
admitted  that  the  cases  of  authority  recognized  that  a  party  was 
responsible  if  he  knew  the  act  was  'vrong,  but  said  that  if  it 
siiouldj  by  the  observation  and  concurrent  testimony  of  medi- 
cal men,  come  to  be  definitely  established  as  true  that  there  is 
a  diseased  condition  of  mind  in  which,  though  the  person 
knows  abstractly  that  his  act  is  wrong,  yet  from  insane  im- 
])ulses  proceeding  from  an  insane  mind,  he  is  driven  to  the  act 
irresistibly,  then  the  law  must  be  modified.  This  is  purely 
hypothetical  or  conditional ;  an  admission  that  such  then  was 
not  the  law.  And  in  the  actual  decision  he  held  as  proper,  and 
not  erroneous,  an  instruction  based  on  the  "  right  and  wrong" 
test,  and  said :  "With  reference  to  the  '  riglit  and  wrong ' 
test  referred  to  in  the  instructions,  it  will  be  seen  that  the 
court  does  not  adopt  this  criterion  as  a  general  one;  tliat  is,  it 
does  not  say  that,  if  thb  defendant  has  capacit}'  to  distinguish 
l)etween  right  and  wrong  generally,  he  is  criminally  responsible. 
But  it  held  that  if  at  the  time  and  with  respect  to  the  act  al)out 
to  be  committed  the  defendant  had  not  reason  enough  to  dis- 
criminate between  right  and  wrong  with  reference  to  that  act, 
and  had  '•  >t  reason  enough  to  know  the  nature  of  the  crime, 
and  did  not  know  that  he  was  doing  wrong  in  committing  it, 
lie  is  not  criminally  punishable.  The  court,  in  substance,  held 
that  if  the  defendant's  reason  was  so  far  gone  or  overwhelmed 


f 
it 


II 


\A 


i 


GU 


AMERICAN  CRIMINAL  REPORTS. 


that  his  perception  of  right  or  wrong  with  respect  to  the  con- 
teni])lated  act  was  destroyed;  if  he  d'd  not  rationally  compre- 
hend the  character  of  the  act  he  was  about  to  commit — he 
should  be  acquitted.  The  instruction  as  given  finds  full  sup- 
port in  the  judgments  of  courts  the  most  respectable.  J^fee- 
maa  v.  People,  4r  Denio,  27,  a])proved  in  Willis  v.  People,  32  N. 
Y.  715;  State  v.  Brandon,  8  Jones,  (N.  C.)  403;  Com.  v.  Mos- 
ler,  4  Pa.  St.  2(U ;  McNayhten's  Case,  10  Clark  &  F.  210  ;  Ox- 
foi'iVs  Case,  9  Car.  tfe  P.  525."  He  thus  quotes  the  very  cases 
holding  the  "  right  and  wrong"  test.  IIow  this  case  of  State 
V.  Felter  can  be  cited  to  sustain  the  "  irresistible  impulse"  test, 
I  am  unable  to  see.  And  in  the  later  case  of  Slate  v.  Meio- 
herter,  40  Iowa,  8S,  the  court  held  that  to  justify  acquittal  for 
uncontrollable  propensity  the  insanity  "  must  be  such  as  to  de- 
stroy the  power  to  comprehend  rationally  the  nature  and  con- 
sequences of  his  act.  and  overpower  his  will."  Several  cases 
cited  in  note  in  36  Amer.  Doc.  407,  as  on  the  side  of  the  "irre- 
sistible impulse"  test  are  not  on  its  side,  but  against  it,  some 
of  them.  0)'ticein  v.  Com.,  76  Pa.  St.  414 ;  Com.  v.  Mosler,  4t 
Pa.  St.  264;  Bmwn  v.  Com.,  78  Pa.  St.  122;  Say  res  v.  Com.,  88 
Pa.  St.  291;  State  y.  Gut,  13  Minn.  358,  (Gil.  315);  State  v. 
S/iij)pei/,  10  Minn.  229  (Gil.  178);  Bhid'hurn  v.  State,  23  Ohio, 
146  and  others.  The  "  irresistible  impulse  "  test  seems  to  meet 
the  approval  of  the  distinguished  law  writer,  Mr.  AVharton. 
Wliart.  Horn.  §  574;  1  Whart.  Crim.  Law,  §  44;  1  Whart.  &  S. 
Med.  Jur.  §  147. 

This  "irresistible  impulse"  test  has  been  only  recently 
presented,  and,  while  it  is  supported  by  j)lausible  arguments, 
vet  it  is  rather  refined,  and  introduces  what  seems  to  me  a 
useless  element  of  distinction  for  a  test,  and  is  misleading  to 
juries,  and  fraught  with  great  danger  to  human  life,  so  much 
so  that  even  its  advocates  have  warningly  said  it  should  be 
very  cautiously  applied,  and  only  in  the  clearest  cases.  What 
is  this  " irresistible  impulse?"  IIow  shall  we  of  the  courts 
and  juries  know  it  ?  Does  it  exist  when  manifested  in  one 
single  instance,  as  in  the  present  case,  or  must  it  be  shown  to 
have  been  habitual,  or  at  least  to  have  evinced  itself  in  more 
than  a  single  instance,  as  Chief  Justice  Gibson  said  must  be 
the  case?  We  have  kleptomania  and  pyromania,  which  bet- 
ter works  on  medical  jurisprudence  tell  us  can  not  excuse  crime 
where  there  is  capacity  to  know  the  character  of  the  act. 


STATE  V.  HARRISON. 


64.- 


j  the  con- 
y  comjn'e- 
inmit — he 
s  full  sup- 
le.  J^ree- 
ople,  32  N. 
m.  V.  Mos- 

210 ;  Ox- 
very  cases 
)  of  State 
ulse"  test, 
e  V.  Mew- 
iiittal  for 
;li  as  to  de- 
e  and  con- 
veral  cases 
■  the  "irre- 
it  it,  some 

Mosler,  4 
y.  Com..,  88 
));  State  v. 
le,  23  Ohio, 
sms  to  meet 
.  Wharton, 
i^hart.  &  S. 

y  recently 
arguments, 

to  me  a 
ileading  to 
),  so  much 

should  be 
ses.    What 

the  courts 
;ed  in  one 
i  shown  to 
ilf  in  more 
id  must  be 
which  bet- 
xcuse  crime 
r)f  the  act. 


Whart.  &  St.  Med.  Jur.  §§  502,  G02,  010.     Shall  we  introduce 
homicidal  mania,  and  allow  him  of  the  manslaying  propensity 
to  walk  innocent  through  the  land  while  yet  not  insane,  but 
capable  of  knowing  the  nature  and  wrong    ,f  his  murderous 
act?    For  myself  I  can  not  see  how  a  person  who  rationally 
comprehends  the  nature  and  quality  of  an  act,  and  knows 
that  it  is  wrong  and  criminal,  can  act  through  irresistible  in- 
nocent impulse.     Knowing  the  nature  of  the  act  well  enough 
to  make  him  otherwise  liable  for  it  under  the  law,  can  we  say 
that  he  acts  from  irresistible  impulse,  and  not  criminal  dosio-n 
and  guilt  ?  And  if  we  are  sure  he  was  seized  and  possessed,  and 
driven  forward  to  the  act  wholly  and  absolutely  by  irresistible 
impulse,  his  mind  being  diseased,  how  can  we  say  he  ration- 
ally realized  the  nature  of  the  act — realized  it  to  an  extent  to 
enable  us  to  hold  him  criminal  in  the  act  ?     How  can  the 
knowledge  of  the  nature  and  wrongfulness  of  the  act  exist 
along  with  such  impulse  as  shall  exonerate  him  ?      Can  the 
two  co-exist  ?    The  one  existing,  does  not  the  other  non-exist  ? 
Can  we  certainly  say  that  a  person  who  is  really  driven  to  an  act 
by  such  an  impulse  is  capable,  at  the  instant  of  the  act.  of  l--now- 
ing  its  true  nature  ?    The  mother  who  threw  her  child  over- 
board into  the  billows  of  the  deep  was  held  innocent  because  she 
was  possessed  and  impelled  by  the  uncontrollable  impulse  to  do 
so,  while  yet  she  was  conscious  of  the  heinousness  of  the  act. 
Can  we  be  sure  she  knew  the  character  of  the  act  ?    If  in  fact 
she  did,  can  we  safely  say  she  was  driven  on  b}'^  the  m^'ste- 
rious  spirit  of  irresistible  impulse?    So  it  appeared  to  the 
Kansas  court  in  State  v.  Nixon,  32  Kan.  205,  wliere  the  court 
says:   "It  is  possible  that  an  ir^ane  impulse   is  sometimes 
sufficient  to  de^.troy  criminal  responsibility,  but  this  is  proba- 
bly so  only  when  it  destroys  the  power  of  the  accused  to  com- 
prehend rationally  the  nature,  character  and  consequences  of 
the  particular  acts,  and  not  vdiere  he  still  has  the  power  of 
knowing  the  character  of  the  acts,  and  that  they  are  wrong. 
*    *    *    The  law  will  hardly  recognize  the  theory  that  an 
uncontrollable   impulse  may  so  take  possession  of  a  man's 
faculties  and  powers  as  to  compel  him  to  do  what  he  knows 
to  be  wrong  and  a  crime,  and  thereby  remove  him  from  all 
criminal  responsibility.      Whenever  a  man  understands  the 
nature  and  character  of  an  act,  and  knows  that  it  is  wrong,  it 


r^:^:i" 


GIG 


AMERICAN  URIMINAL  REPORTS. 


in 

ij 

1 

4  i  i 

1 

f:  ? 


would  seem  that  he  ought  to  be  held  legally  responsible  for 
the  commission  of  it." 

After  preparing  this  opinion,  I  met  with  Stephens'  History 
of  the  Criminal  Law  of  England.  Mr.  Stephens  is  quoted  as 
favoring  the  "  irresistible  impulse  "  theory,  and  in  volume  2, 
pp.  170,  171,  brings  himself  to  the  admission  that  one  who  is 
the  subject  of  such  an  impulse  does  not  know  that  his  act  is 
wrong ;  that  one  who  does  know  the  right  has  power  to 
choose  the  right  over  the  wrong,  this  very  knowledge  involv- 
ing and  including  power  of  self-control ;  that  so  the  rules  laid 
down  by  the  law  ought  to  be  construed ;  that  the  test  of 
"  knowledge  that  an  act  is  wrong"  is  the  best  and  most  proper 
test  of  accountability,  and  that  such  is  tlie  test  by  the  law  of 
the  land. 

He  says :  "  Knowledge  anil  power  are  the  constituent  ele- 
ments of  all  voluntary  action,  and,  if  either  is  seriously 
impaired,  the  other  is  disabled.  It  is  as  true  that  a  man  who 
can  not  control  himself,  does  not  know  the  nature  of  his  acts, 
as  that  a  man  who  does  not  know  the  nature  of  his  acts,  is 
incapable  of  self-control." 

I  admit  the  existence  of  irresistilde  impulse,  and  its  efficacy 
to  exonerate  from  res|)onsibility,  but  not  as  consistent  with  an 
adequate  realization  of  the  wrong  of  tiie  jict.  It  is  that  uncon- 
trollable im])ulse  produced  by  the  disease  of  the  mind,  when 
that  disease  is  sufficient  to  override  the  reason  and  judgment, 
and  obliterate  the  sense  of  right  as  totlieact  done,  and  deprive 
the  accused  of  power  to  choose  between  them.  This  impulse 
is  born  of  the  disease,  and  when  it  exists,  capacitv  to  know  the 
true  nature  of  the  act  is  gone.  This  is  the  sense  in  which 
"irresistible  impulse"  was  define'  in  IIopps  v.  People,  31  111. 
3S5,  anil  D.icyi\  People,  IIG  III.  55G. 

It  seems  to  me  to  be  very  dangerous  to  life  to  tell  juries  that  a 
party  may  know  the  nature  of  his  murderous  act,  and  know 
and  be  conscious  that  it  is  wrong  and  criminal,  and  yet  be  ex- 
cusable if  he  did  the  act  at  the  command  of  irresistible  im- 
pulse, tlius  eliminating  the  knowledge  of  the  wrong  of  the  act, 
as  an  unessential,  unimportant  element  in  the  test.  I  do  not 
regard  it  essential  to  the  safety  of  the  parties  accused. 

The  operations  of  the  human  mind  are  wonderful,  mysteri- 
ous and  occult.  Insanity  is  one  of  its  melancliol}'  and  impen- 
etrable conditions.    Its  types  and  phases  are  infinite  and  dark. 


jnsible  for 

is'  History 

quoted  as 

volume   2, 

l>ne   who  is 

liis  act  is 

power  to 

l«j,e  in  vol  V- 

e  rules  laid 

lie   test  of 

iiost  proper 

the  law  of 

itituent  ele- 
s  seriously 
a  man  who 
of  his  acts, 
his  acts,  is 

I  its  efficacy 
tent  with  an 
i  that  uncon- 
mind,  when 
d  judgment, 
and  deprive 
L'his  impulse 
to  know  the 
se  in  whicli 
eople,  31  111. 

juries  that  a 
,  and  know 
id  yet  be  ex- 
'esistible  ini- 
ig  of  the  act, 
:.  I  do  not 
ised. 

ful,  mj'^steri- 

and  impen- 

ite  and  dark. 


STATE  V.  HARRISON. 


647 


Volumes  upon  volumes  have  been  compiled  by  writers  upon 
medical  jurisprudence,  mental  philosophy  and  law  to  pierce  its 
depths,  and  find  the  general  rules  which  shall  tell  criminal 
courts  what  degree  and  character  of  insanity  shall  avail  to  ex- 
cuse crime;  but  no  general  rule  universally  applicable  has  been 
or  can  be  found,  because,  as  Mr.  Bishop  says,  it  is  not  in  the 
nature  of  the  subject  to  extract  such  a  rule  from  it.  I  know 
of  no  better  rule  than  the  ''right  and  wrong"  test  as  above 
stated.  Hence,  I  do  not  think  instruction  twenty-one  is  good 
in  law. 

There  is  another  objection  to  instructions  seventeen  and 
twenty-one,  in  that  there  was  a  theory  presented  by  the 
evidence  that  before  the  killing  of  the  deceased  the  prisoner 
had  taken  laudanum;  and  if  he  was  under  its  intoxication,  pro- 
duced by  the  voluntary  use  of  the  drug,  that  intoxication 
would  furnish  him  no  excuse.  These  instructions  do  not 
insert  that  theory  as  an  element  of  the  hypothesis  presented 
b^'  them,  but  disrc'(:^ard  and  ignore  it,  and  are  bad  for  that 
cause.  State  v.  lioUnsony  2u  W.  Va.  713;  State  v.  Welch, 
.mpm,  (15  S.  E.  Rep.  419). 

An  objection  to  James  Kelly's  competency  as  a  juror,  is  not 
insisted  on  in  the  brief  of  counsel,  and  is  not  tenable.  jS"or  is 
the  motion  to  quash  the  indictment  because  of  irregularity  in 
the  formation  of  the  grand  jury,  or  other  cause,  insisted  on. 
No  irregularity  as  to  the  grand  jury  a])pears. 

Did  the  court  err  in  refusing  a  new  trial  because  the  verdict 
was  contrary  to  evidence  and  law  ?  This  involves  the  merits 
of  the  case  upon  the  evidence  before  the  jury;  but  it  is  unnec- 
essary to  elal)orate  the  voluminous  evidence,  or  even  any  of  the 
facts  touching  tlie  merits  of  the  case.  Suffice  it  to  say,  liowever, 
that  Allen  Harrison,  the  prisoner,  was  about  twenty-six  years 
of  age.  Having  some  difficulty  with  his  father,  lie  left  his 
home,  and  was  a  homeless  wanderer,  and  was  kindly  taken 
under  the  roof  of  Frank  Adams,  where  he  had  been  furnished 
a  home,  and  treated  very  kindh'  as  a  member  of  the  family 
for  nearly  a  year  before  the  tragedy,  making  no  return  but  in 
small  jobs  of  work.  He  fell  in  love  with  Bettie  Adams,  daugh- 
ter of  Frank  Adams,  and  paid  her  frequent  attention,  but  his 
love  was  not  by  any  means  reciprocated,  as  he  was  well  aware. 
Miss  Adams  preferred  another,  and  so  gave  Harrison  to  under- 
stand.     He  became  exceedingly  jealous  of  attention  to  her 


It    " 


■■'■  ?f 


l! 


643 


AMERICAN  CRIMINAL  REPORTS. 


Iff 


m 


from  her  lover,  and  when  he  would  visit  the  house  Harrison 
would  leave  it,  and  quarrel  with  Miss  Adams  about  her  receiv- 
ing attention  from  others.  They  had  frequent  "  spats,"  in  the 
language  of  the  witness,  on  that  account.  He  declared  his 
love  to  the  girl's  mother,  but  she  told  him  that  it  would  do  him 
no  good,  and  the  best  thing  he  could  do  was  to  leave  the  house; 
that  her  daughter  was  a  mere  child;  that  she  wanted  him  to 
take  his  clothes  and  go;  that  her  daughter  would  not  stay  at 
home;  that  talk  was  abroad  in  the  neighborhood,  and  he  was 
trying  to  keep  other  folks  from  going  with  her  daughter. 
This  she  told  him  several  months,  and  the  last  time  about  a 
week  before  the  killing  of  the  daughter.  The  daughter  feared 
him — feared  that  he  would  poison  her.  On  Friday  night  he 
stayed  with  a  neighbor,  and  there  he  s  orctly  took  a  pistol 
from  the  drawer.  He  next  da}'^  went  to  a  store,  iuul  asked  for 
cartridges.  The  pistol  had  two  loads  in  it,  but  he  seems  to  have 
wanted  more  cartridges  to  make  sure  work.  He  bought  two 
two-ounce  vials  of  laudanum.  On  Saturday  he  returned  to  the 
home  of  Adams,  and  at  the  kitchen  door  called  for  a  drink  of 
water,  then  walked  through  it  into  the  front  room,  and  Eettie 
Adams  went  into  that  room  just  behind  him,  to  take  up  ashes, 
and  almost  immediately  the  mother  heard  a  shot,  and  the  ex- 
clamation of  her  daughter,  "  Oh,  ma,  Allen  has  shot  me !  " 
and  ran  to  her,  took  her  in  her  arms,  when  Bettie  sunk  to  the 
floor,  never  spoke  again,  and  died  at  once.  The  mother  found 
Harrison  in  the  room,  pistol  in  hand,  trying  to  shoot  it  again, 
it  being  an  old  pistol,  out  of  order ;  and  she  s'.iid  m  had  an 
unusually  vicious  look  on  his  face.  A  little  sistor  ,  ilarri- 
son  place  the  pistol  close  to  the  back  of  the  doce;vit'  .J  iire. 
He  went  to  the  woods  close  by,  threw  the  pistol  x  (og,  and 
was  found  in  a  few  hours,  lying  down,  with  coat  u'uler  his 
head.  He  declared  he  did  not  know  why  he  had  done  the  act. 
He  wanted  them  to  take  an  ax  and  kill  him,  as  he  had  done 
so  dreadful  an  act.  He  said  he  shot  the  deceased  in  the  breast 
as  she  raised  up  in  raking  the  ashes,  and  as  she  turned  he  shot 
her  in  the  back.  Afterward,  when  being  convoyed  to  jail,  he 
was  asked,  if  it  were  to  do  over  again,  would  he  do  it  ?  and 
answered,  "  Yes,  I  would ;"  that  he  was  not  sorry  for  it,  or 
ashamed  of  it,  but  was  ashamed  for  anybody  to  see  him.  The 
mother  requested  him  to  go  to  see  her  child's  dead  bod}',  but 
he  declined  to  do  so.    On  the  way  to  jail  he  unloosed  the  rope 


STATE  V.  HARRISON. 


649 


Harrison 
or  rcceiv- 
ts,"  in  the 
lared  his 
Id  do  him 
;he  house; 
d  him  to 
ot  stay  at 
d  he  was 
daughter, 
e  about  a 
ter  feared 
night  he 
»k  a  jHstol 
asked  for 
US  to  have 
»ught  two 
ned  to  the 
I  drink  of 
and  Eettie 
up  ashes, 
nd  the  ex- 
hot  me ! " 
unk  to  the 
ther  found 
>t  it  again, 
iic  had  an 
-      if.irri- 
'^J  iire. 
i,  (og,  and 
under  his 
ne  the  act. 
had  done 
tlie  breast 
led  he  shot 
1  to  jail,  he 
:lo  it  ?  and 
y^  for  it,  or 
him.    The 
bod}',  but 
3d  the  rope 


with  which  he  was  tied,  and  ran  a  short  distance,  trying  to 
escape.  Either  before  or  after  the  act  he  took  laudanum, 
probablj'^  a  large  quantity,  and  vomited  several  times  after  his 
arrest,  appearing  sick  and  weak.  The  only  defense  was  in- 
sanity. It  was  a  question  for  the  jury,  and  they  found  against 
it,  as  we  think,  properly.  Here  is  a  ruthless,  cruel  murder  of 
a  child  a  little  over  fifteen  years  of  age,  simply  because  of  unre- 
quited love  and  jealousy.  There  is  no  evidence  at  all  adequate 
to  sustain  the  plea  of  insanity.  The  prisoner  had  ))racticed 
masturbation,  and  there  was  evidence  tending  to  show  that  he 
was  afflicted  with  melancholia  caused  by  it;  but  the  great  vol- 
ume of  evidence  is  utterly  insufficient  to  show  any  want  of 
capacity  to  excuse  him.  The  attempt  to  commit  suicide,  if  he 
really  attempted  it,  is  the  strongest  evidence  to  support  the 
insanity  theory,  but  it  does  not  show  insanity  necessarily.  1 
Whart.  &  S.  Med.  Jur.,  §  636 ;  Coijle  v.  Co7n.,  100  Pa.  St. 
573.  The  theory  of  irresistible  impulse  was  so  little  borne  out 
b}'  the  evidence  that  it  may  be  questioned  whether  the  instruc- 
tion based  on  it,  even  if  correct  in  law,  was  relevant  to  the 
case.  He  deliberately  and  secretly  prepared  the  j)istol,  hours 
before  the  bloody  and  cruel  deed.  He  knew  that  the  girl  did 
not  love  him,  and  that  marriage  with  her  was  out  of  the  ques- 
tion. It  is  simply  another  instance  of  the  many  in  the  annals 
of  criminal  law,  where  a  man  murders  a  woman  because  she 
will  not  reciprocate  his  love,  and  because  of  intense  jealousy, 
perhaps  mingled  in  this  case  with  malice,  because  he  had  been 
bidden  to  leave  the  house  on  her  account.  Solemn  as  is  the 
judgment,  we  are  compelled  to  affirm  it.  As  the  day  fixed 
for  the  execution  of  the  sentence  has  passed,  the  case  is  re- 
manded to  the  Circuit  Court,  with  direction  to  cause  the  de- 
fendant to  be  brought  before  it,  and  to  fix  another  day  for  the 
execution  of  +he  judgment. 

"Scyr^.—Self-defense.—The  plea  of  self-defense  rests  upon  tlie  idea  of  ne- 
cessity—a  legal  necessity;  that  is,  such  a  necessity  as,  in  the  eye  of  the  law, 
will  excuse  one  for  so  grave  an  act  as  the  taking  of  human  life.  In  other 
words,  one  can  not  claim  indemnity  or  excuse  for  taking  the  life  of  an- 
other, unless  he  makes  it  appear,  by  the  preponderance  of  the  evidence,  that 
it  was  necessaiy  for  him  to  do  so  in  order  to  protect  his  own  life,  or  to  pro- 
tect his  person  from  some  grievous  bodily  harm;  and,  of  course,  where  it 
appears  that  there  were  other  probable  means  by  which  the  shedding  of  hu- 
man blood  might  have  been  avoided,  it  can  not,  with  any  propriety,  be  said 


'iiW' 


650 


AMERICAN  CRIMINAL  REPORTS. 


that  there  wjia  any  such  necessity  to  take  human  life  as  would  excuse  the 
slayer.    State  v.  Mclatonh  (S.  C),  18  S.  E.  1033:  State  v.  Wyw,  33  S.  C.  694. 

There  can  be  no  necessity  to  kill  if  there  is  a  safe  way  of  retreat  open  to 
the  slaytr,  available  by  the  exercise  of  reasonable  prudence.  Keith  v.  State, 
97  Ala.  32.  It  is  well  settled  tiiat  the  burden  is  not  on  the  defendant  to 
l)rove  afHrinatively  that  he  was  free  from  fault  in  bringing  on  the  dilHculty. 
This  hurilen  rests  uixm  the  state,  when  a  caao  of  self-defense  is  made  out  by 
the  defendant;  and  if  it  appears  that  defendant  was  not  free  from  fault  in 
bringing  on  or  provoking  theditticulty,  the  law  will  not  shield  him  from  the 
consequences  of  committing  a  homicide,  the  result  of  his  own  fault,  although 
at  the  time  of  the  killing  there  was  a  pressing  necessity  to  striki;  to  save  his 
own  life,  and  there  was  no  mode  of  escai)e.     Holmes  v.  State,  i4  8o.  804. 

No  person  can  bring  about  a  necessity  to  kill  another,  even  to  save  his 
own  life,  and  tlien  plead  the  "necessity"  in  justification  of  the  homicide. 
It  may  be  said  to  be  the  general  rule,  the  killing  of  an  assailant  is  excusable 
on  the  ground  of  self-defense,  only  when  it  is,  or  rea»sonably  appears  to  be. 
the  only  means  of  saving  his  own  life  or  preventing  some  grejit  bodily  in- 
jury. If  tlie  danger  wiiich  appears  to  bo  imminent,  can  be  avoided  in  any 
other  way,  as  by  retiring  from  the  conflict,  the  taking  of  the  life  of  the  as- 
sailant is  not  excusable.  State  v.  Slielton,  (t4  Iowa  333;  State  v.  Shreves,  81 
Iowa  615. 

Such  is  the  indulgence  shown  human  frailty,  that  when  two  persons  have 
fought,  even  in  malice,  and  afterward,  to  all  appearance,  are  rei-onciled. 
and  fight  again  on  fresh  quarrel,  it  will  not  be  presumed  that  they  were 
moved  by  the  old  grudge,  unless  it  appear  from  all  the  circumstances  of  the 
fact.  State  v.  Barnwell,  80  N.  G.  470,  citing  Hawk,  P.  C,  c.  31,  g  30;  State 
V.  Jackson,  2  Jones  (N.  C.),  247;  State  v  Hill,  4  Dev.  &  B.  491.  lii'sides,  if 
there  has  been  no  reconciliation,  if  the  defendant  was  assaulted,  iind])laced 
under  such  circumstances  that  he  had  good  reason  to  believe,  and  did  be- 
lieve, that  it  was  necessary  to  take  the  life  of  the  deceased  to  preserve  his 
own,  or  to  prevent  the  infliction  of  great  bodily  injury,  the  fact  of  the 
previous  ill  will  or  malice  sustained  toward  the  deceased  could  not  take 
away  his  right  t;)  self-defense,  or  convert  a  justifiable  homicide  into  nmrder. 
People  V.  Hyndman,  99  Cal.  1. 

There  is  no  law  of  this  or  any  other  country,  which  will  justify  a  husband 
ingoing  into  a  field  where  a  man  is  at  work  and  killing  him,  because  he  has 
committed  adultery  with  the  slayer's  wife.  To  do  such  an  act  is  murder 
absolute  and  unqualified.  It  is  taking  the  law  into  one's  own  hands,  and 
punishing  a  man  with  death  for  a  i)ast  transgression.  This  is  contrary  to 
all  principles  of  law  and  the  administration  of  law.  Under  such  a  state  of 
facts,  there  could  be  no  necessity  for  the  killing  to  prevent  a  future  act  of 
adultery  Iwtween  the  slain  man  and  the  slayer's  wife.  The  doctrine  of  rea- 
sonable fear  as  a  defense  has  no  application  to  any  homicide  where  the  dan- 
ger apprehended  is  not  urgent  and  pressing,  or  apparently  so,  at  the  time  of 
the  killing.    Jackson  v.  State,  91  Ga.  271. 

Defending  others. — On  a  murder  trial,  where  it  appeared  that,  as  two  men 
were  engaged  in  a  fist  fight  in  a  saloon,  deceased,  a  constable,  ttM)k  hold  of 
one  of  them,  but  said  nothing  to  indicate  whether  he  intended  to  preserve 
the  peace,  or  to  aid  the  other  combatant,  the  person  seized  pushed  de- 
ceased back  several  feet,  when  deceased  drew  his  pistol,  and,  defendant, 
sitting  in  the  room  with  his  gun,  warned  deceased  several  times  not  to 


i|:' 


IN  RE  WALSH. 


651 


1(1  oxcusc  tho 
m  S.  C.  694. 
treat  open  to 
Ceitli  V.  State, 
ilcft'iidant  to 
ho  (lilHculty. 
made  out  by 
from  fault  in 
him  from  the 
lult,  althougli 
ktj  to  wave  his 
!■;  So.  864. 
n  to  save  his 
lio  liomicido. 
t  JH  excusable 
ippeara  to  be. 
:t'at  bodily  in- 
voided  in  any 
life  of  the  as- 
V.  Shreves,  81 

I  persons  have 
■e  I'eeonc'iled, 
lilt  they  were 
stances  of  the 
31,  g  30;  State 
I.  Besides,  if 
ii\,  and  placed 
e,  and  did  be- 
3  preserve  his 
e  fact  of  the 
3uld  not  take 
<i  into  murder. 

ify  a  husband 
lecause  ho  has 
let  is  murder 
'n  hands,  and 
is  contrary  to 
ucli  a  state  of 
future  act  of 
DCtrine  of  rea- 
ilu're  the  dan- 
at  the  time  of 

it,  Jis  two  men 
',  t<M)k  liold  of 
ed  to  preserve 
(d  pushed  de- 
id,  defendant, 
times  not  to 


shoot,  but,  as  ho  was  about  to  do  sn,  shot  him,  it  was  held,  that  if  de- 
ceased would  liave  committed  i>  urder,  in  killing  the  combatant  wlio  pushed 
him  back,  defemlant  was  justified  in  killing  hiin  to  t ave  ' he  life  of  said' 
combatant;  and  that  if  defendant  believed  that  deceased  was  aiding  the 
other  combatant,  and  was  not  acting  in  his  official  capacity  to  preserve 
tiie  peace,  lie  was  justified  in  killing  deceased  to  preserve  the  life  of  said 
combatant,  though  in  fact  deceased  was  attempting  to  preserve  the  peace. 
Glover  v.  State,  20  S.  W.  204. 

Under  our  law  the  same  circumstances  that  would  justify  or  excuse  the 
killing  of  an  assailant  where  the  assault  is  upon  one's  self,  will  also  excuse  or 
justify  tlie  slayer  if  the  killing  is  done  in  defense  of  his  or  her  husband, 
wife,  jiareiit.  child,  master,  mistress,  or  servant.  The  rule  of  law  has  been 
established  to  be,  that  all  that  can  be  required  of  the  prisoner,  in  such  cases, 
is  to  show  tliat  he  was  surrounded  by  such  a  condition  of  affairs  as  made  it, 
from  liis  standpoint,  reasonable  for  a  cautious  and  prudent  man  to  believe 
that  it  was  necessary  to  strike  the  fatal  blow  in  order  to  save  himself  from 
death  or  great  bodily  harm.  In  a  case  where  the  defendant  struck  the  fatal 
blow  to  save,  not  himself,  but  some  member  of  his  hou&ehold,  from  either 
death,  or  great  Iwdily  harm,  all  that  could  be  required  of  him,  to  establish 
such  defense,  was  to  show,  from  the  evidence,  that  he  was  surrounded  by 
such  a  state  of  affairs  as  made  it  reasonable  for  a  cautious  and  prudent  man 
thus  situated,  to  believe  that  one  of  his  family  was  in  imminent  danger  of 
losing  thi'ir  life,  or  of  receiving  great  personal  injury,  unless  he  struck  the 
fatal  blow.    Hathaway  v.  State,  32  Fla.  56. 


In  re  Walsh. 

(37  Neb.  454.) 
Separate  Sentenxe  :    Forgery— Information. 

1.  Where  a  person  has  been  convicted  at  the  same  term  of  court  of  several 

distinct  offenses,  each  punishable  by  imprisonment  in  the  penitentiary, 
wlu'ther  charged  in  separate  informations  or  in  separate  counts  of 
the  same  information,  the  court  may  imi)ose  a  separate  sentence  for 
e.-Kli  olFense  of  which  the  prisoner  has  been  found  guilty. 

2.  If  the  same  olTense  is  charged  in  ditTerent  counts  of  an  information. 

and  there  is  a  convictiim  on  each  count,  but  a  single  sentence  should  be 
pronounced  upon  all  the  counts  for  tlie  one  entire  offense. 
8,  An  information  which  charges  the  forgery  of  an  instrument,  and  the 
fraudulently  uttering  of  the  same  instrument  by  the  same  person, 
charges  liut  one  crime,  and  in  case  of  conviction,  but  one  penalty  can 
be  inflicted. 

Original  proceedings  in  habeas  corpus,  on  the  petition  of 
Fred  Walsh  for  release  from  custody  on  a  conviction  for  for- 
gery.    Petitioner  discharged. 


Tt 


652 


AMERICAN   CRIMINAL  REPORTS. 


Wiilti'r  A.  Leese,  for  petitioner. 

Geo.  //.  IIaiitin(j8y  Atty.  Gen.,  for  respondent. 

NoRVAL,  J.  At  the  May  term,  1S92,  of  the  district  court  of 
Douji^las  county,  the  county  attorney  filed  in  said  court  an 
information  against  the  petitioner,  Fred  "VValsh,  which  con- 
tained two  counts,  the  first  of  which  charges  that  the  peti- 
tioner, on  the  12th  day  of  April,  1892,  in  the  county  of  Doug- 
las, unlawfully  and  feloniously  did  falsely  make,  forge,  and 
counterfeit  a  certain  bank  check  calling  for  the  sum  of  ^45.60, 
with  intent  to  defraud.  A  copy  of  the  instrument  is  set  out 
in  the  information.  The  second  count  charges  cho  petitioner 
with  feloniously  uttering  and  publishing  as  true  and  genuine 
the  said  false,  forged,  and  counterfeit  bank  check  described 
and  set  out  in  the  first  count,  he  at  the  time  knowing  the 
same  to  be  false,  forged,  and  counterfeited.  Subsequently,  at 
the  same  term,  the  petitioner  was  arraigned  on  the  informa- 
tion, and  he  entered  a  general  plea  of  guilty.  He  was  there- 
fore sentenced  by  the  court  upon  the  first  count  to  confine- 
ment in  the  penitentiary  at  hard  labor  for  the  perioil  of  one 
year  from  and  after  the  9th  day  of  May,  1892,  and  upon  the 
second  count  a  like  imprisonment  was  imposed  for  the  term 
of  one  year  from  May  9,  1893.  By  good  conduct  the  peti- 
tioner has  saved  two  months  of  his  first  sentence,  and  having 
served  out  the  term  under  the  first  sentence,  he,  on  the  10th 
day  of  March,  1893,  presented  to  this  court  his  petition  for 
discharge  on  habeas  corpus,  on  the  ground  that  the  second 
sentence  is  illegal  and  void.  At  the  hearing  the  writ  was 
allowed. 

The  contention  of  counsel  for  the  petitioner  is  that  the 
power  to  inflict  cumulative  sentences  does  not  exist,  unless  ex- 
pressly conferred  by  statute,  and,  as  there  is  no  legislative  en- 
actment in  this  state  authorizing  cumulative  sentences,  such 
sentences  in  felony  cases  are  illegal.  The  following  authori- 
ties are  cited  to  sustain  the  doctrine  :  People  v.  Liscomh,  CO  N. 
Y.  559;  Miller  v.  Allen^  11  Ind.  389;  Kennedy  v.  IFotmrd,  74 
Ind.  87;  Prince  v.  State^  44  Tex.  481;  James  v.  Ward,  2  Mete. 
(Ky.)  271;  Lamphere^s  Case,  61  Mich.  105;  BloonCs  Case,  53 
Mich,  597.  But,  in  our  opinion,  the  great  weight  of  authority 
is  in  favor  of  the  proposition  that  upon  connection  of  sev- 
eral   offenses    charged    in    separate    indictments,   or  in  sep- 


IN  RE  WALSH. 


053 


;  court  of 
court  an 
lich  con- 
the  peti- 
of  Doug- 
)rgc,  and 
of  845.60, 
s  set  out 
petitioner 
[  genuine 
described 
wing  the 
uently,  at 

informa- 
nxs  there- 
con  fine- 
id  of  one 

upon  the 
'  the  term 

the  peti- 
nd  having 
itlie  10th 
tition  for 
10  second 

writ  was 

1  that  the 
unless  ex- 
shitive  en- 
tices, such 
g  authori- 
omb,  GO  N. 
^mvard,  74 
5?,  2  Mete. 
i  Cdse,  53 
authority 
m  of  sev- 
er in  sep- 


arate counts  of  the  same  indictment,  the  court  has  power 
to  impose  cumuhitive  sentences.  See  Whart.  Cr.  Pi.  »fe  Pr. 
§  910;  Pish.  Crim.  Law,  ^t»53;  K!h'  v.  Com.,  11  Mete. 
(Mass.)  581;  ^limfi  v  Sfafe,  2(»  Minn.  4i»8;  Sfntc  v.  Smith, 
5  Day  175;  Petition  rf  IrleCormiA',  24  Wis.  402;  In  re  Fn/,  3 
Mackey  135;  Ee,  jxirte  Uihln,  2(5  Fed.  Pep.  421;  State  v.  liohin- 
(ton,  40  La.  Ann.  730;  J'lirhr  v.  /  eoj>/e,  13  Colo.  Sup.  155; 
3£ills  V.  Com.,  13  Pa.  St.  631;  lifouui  v.  Com.,  4  Kawlo  259; 
Jiimell  e.  Com.,  7  Serg.  &,  R.  489;  William fi  v.  State,  18  Ohio  St. 
46;  EUh'iihje  v.  State,  37  Ohio  St.  199;  lio/m  v.  Peoj^le,  73  111. 
488;  Stark  v.  People,  SO  PI.  32;  Johnson  v.  Peoj)le,  83  PI.  431; 
FUzjMtti'iel'  V.  People,  98  PI.  269.  The  leading  case  sustaining 
the  position  that  cumulative  sentences  are  void  [^People  v.  Lis- 
Gomh,  60  N.  Y.  559,  cited  by  counsel  for  the  petitioner,  and  the 
doctrine  there  enunciated  has  been  frequently  criticised  bylaw 
writers  and  jurists,  and  the  courts  generally  have  refused  to 
follow  it  as  a  precedent.  Although  there  is  no  statutory  pro- 
vision in  this  state  which  authorizes  a  court  to  sentence  a  per- 
son convicted  of  a  crime  to  imprisonment  for  a  term  to  com- 
mence at  the  expiration  of  another  term  specified  in  a  previous 
sentence,  j'et,  inasmuch  as  the  statute  does  not  in  terms  re- 
quire sentences  of  imprisonment  to  commence  in  jyt'denenti,  we 
are  persuaded  that  the  power  necessarily  exists  to  make  the 
term  of  imprisonment  imposed  by  a  sentence  commence  at  the 
expiration  of  another,  else  where  a  person  is  convicted  at  the 
same  term  of  court  for  several  distinct  offenses,  charged  in  the 
same  or  in  different  informations  or  indictments,  the  court  could 
pronounce  a  sentence  of  imprisonment  upon  one  conviction 
only,  and  judgments  in  the  other  convictions  would  have  to  be 
postponed  until  the  expiration  of  the  sentence  in  the  other  case- 
We  are  unwilling  to  adopt  the  construction  contended  for  by 
the  petitioner's  counsel.  The  supreme  court  of  Ohio,  in  Will- 
iams V.  State,  sxipra,  in  passing  upon  a  similar  question,  say  : 
"  To  hold  that  where  there  are  two  convictions  and  judgments 
of  imprisonment  at  the  same  term  both  must  commence  imme- 
diately, and  be  executed  concurrently,  would  clearly  be  to  nul- 
lify one  of  them.  To  postjione  the  judgment  in  one  case  until 
the  termination  of  the  sentence  in  the  other  would,  if  allow- 
able, be  attended  with  obvious  inconveniences  and  expense, 
without  any  correspondent  benefit  to  the  convict.  There  is 
nothing  in  the  statute  requiring  this,  and  it  is  not  to  be  con- 


*H 


w 


C54 


AMERICAN  CRIMINAL  REPORTS. 


struod  so  ns  todofcat  or  impedo  tlio  execution  of  its  nvn  pro- 
visions as  to  the  jjunislinient  of  crimes.  We  think  botli  upon 
principle  and  the  weij^ht  of  authorit}',  that  we  are  required  to 
hold  that  it  is  not  error,  upon  a  conviction  in  a  criminal  case, 
to  make  one  term  of  imprisonment  commence  when  another 
terminates."  This  court  has  held  that,  where  a  piMsun  has 
l)een  convicted  of  several  distinct  misdemeanors,  it  is  ])roper 
for  the  court  to  impose  a  separate  sentence  uj)on  each  otfense 
of  wiiich  the  defendant  is  found  guilty  {/iurrell  v.  Sfnte,  2.5 
Xeb.  581),  and  we  know  of  no  reason  why  the  same  rule  siiould 
not  api)ly  in  convictions  for  felonies.  Where  a  cumulative  sen- 
tence is  imposed  incase  a  person  is  convicted  of  several  dis- 
tinct offenses,  the  judgment  should  not  fix  the  day  on  which 
each  successive  term  of  imprisonment  should  commence,  but 
should  direct  that  each  successive  term  should  begin  at  theex- 
piration  of  the  ])rovious  one  {Johnson  v.  rcople,  83  111.  431 1;  and 
this  for  the  oin'ious  rear.on  that  the  prior  term  of  imprison- 
ment may  be  shortened  by  the  good  behavior  of  the  defendant. 
i)y  executive  clemency,  or  by  a  reversal  of  the  judgment,  in 
which  event  the  succeeding  sentence  would  then  take  effect, 
in  case  it  provided  that  the  term  of  imprisonment  should  com- 
mence at  the  termination  of  the  previous  one.  It  will  be  ob- 
served that  the  second  sentence  in  the  case  we  are  considering 
did  not  so  provide,  but  specilied  that  the  term  of  imprison- 
ment shoulii  begin  on  ^lay  9,  1893.  By  the  good  conduct  of 
the  petitioner  his  first  term  of  imjmsonment  was,  under  the 
statute,  cut  down  to  ten  months,  so  that  his  first  term  had 
ended  and  his  second  term  had  not  commenced  when  the  writ 
of  habeas  corpus  was  granted  in  this  case,  or  when  the  prisoner 
was  ordered  discharged  on  the  writ  issued  herein. 

There  is  another  reason  why  the  imprisonment  of  the  ])eti- 
tioner  was  illegal.  The  information,  although  it  contains  two 
counts,  charges  but  a  single  offense,  yet  the  accused  has  been 
sentenced  to  two  separate  terms  of  imprisonment — one  term 
for  falsely  making  a  bank  check,  and  another  term  for  fraudu- 
lently uttering  the  same  instrument.  From  the  information 
itself  it  appears  that  the  check  described  in  the  second  count 
as  having  been  fraudulently  uttered  by  the  petitioner  was  the 
same  instrument  as  that  described  in  tlie  first  count  as  having 
been  forged  by  him.  Both  acts  were  parts  of  the  same  trans- 
action, and  constituted  but  one  crime,  and  the  court  had  no 


IN  RE  \VAL81£. 


C55 


nvn  ])va- 

otii  u|)()n 

(|tiiiv(l  to 

iiiiil  cnsc, 

\  iHH)tlior 

i's(»n  has 

IS  ])r(»])t'r 

I  oirense 

<Sf(tff\   25 

t?  should 

ative  sen- 

veral  (lis- 

oii  which 

icnoo,  hut 

at  thoex- 

431 1;  and 

imprlson- 

lofciKhmt, 

•fuicnt,  in 

iiko  ffFect, 

louhl  coni- 

ivill  ho  oh- 

onsi(lorin<^' 

iniprison- 

conduct  of 

un(h'r  the 

tc'i'in  had 

n  the  writ 

le  prisoner 

f  the  peti- 
lUtainstwo 
d  has  heen 
—one  term 
forfraudu- 
1  formation 
ond  count 
er  was  the 
us  having 
amo  trans- 
urt  had  no 


power  to  impose  separate  sontenci^s  upon  each  count.  Whart. 
Crim.  Law,  141,  states  the  rule  thus :  '*  Where  a  statute  maUes 
two  or  more  distinct  acts,  connected  with  the  same  transac- 
tion, in<lictahle.  each  one  of  which  may  bo  considered  as  rep- 
resenting a  stage  in  the  same  olfense]  it  has  in  many  cases 
been  ruled  that  thoy  may  bo  coupled  in  ono  count.  Thus, 
setting  up  a  gaming  table,  it  has  heen  said,  may  he  mi  entire 
olFonso  ;  keeping  a  gaming  table,  and  inducing  others  to  bet 
upon  it,  may  also  constitute  a  distinct  oll'ense.  For  (;ither, 
unconnected  with  the  other,  an  indictment  will  lie ;  yet  when 
both  are  perpetrated  by  the  same  person  atthesanu/tinu'they 
c(mstituto  but  ono  olTense,  for  which  ono  count  is  sulllcient, 
and  for  which  but  one  penalty  can  bo  inlllctod."  The  above 
doctrine  is  abundantly  sustained  by  the  authorities.  Jo/tn- 
sfori  V.  Corn..,  85  Pa.  St.  54;  Kc  parte  Snow,  120  U.  S.  274 ; 
Woot/fonl  V.  State,  1  Ohio  St.  427;  Ilhdie  v.  Com.,  4  Dana, 
518;  Com.  v.  J'Mton,  15  Pick.  273;  Devcre  v.  State,  5  Ohio  Cir. 
Ct.  R.  50i) ;  State  v.  EyjJenJit,  41  Iowa  574.  In  the  last  case 
the  supremo  court  of  Iowa  decided  that  where  a  person  at 
tho  same  term,  and  as  part  of  the  same  transaction,  passed 
four  forged  checks,  he  was  guilty  of  but  ono  offense,  and  that 
there  could  not  bo  a  separate  conviction  for  uttering  each  in- 
strument. See  Slate  v.  Ilenricswy,  23  Ohio  St.  33!t;  State  v. 
Bcnham,  7  Conn.  414.  The  precise  question  we  are  consider- 
ing was  i)assed  upon  in  the  case  of  Devere  v.  Stat<\  sapm. 
That  was  a  prosecution  for  forgery  before  tho  court  of  com- 
mon pleas,  the  indictment  containing  two  counts,  one  charg- 
ing the  defendant  with  the  forgery  of  a  promissory  note,  and 
tho  other  with  the  uttering  of  tho  same  instrument.  A  ver- 
dict of  guilty  was  rendered  on  both  counts,  and  she  was 
sentenced  by  tho  court  to  confinement  in  tho  penitentiary  for 
five  years  under  the  first  count,  and  a  like  term  under  the  sec- 
ond count ;  tho  last  term  to  commence  at  the  expiration  of  the 
first.  She  prosecuted  error  to  the  circuit  court,  where  it  was 
held,  under  a  statute  relating  to  forgery,  almost  like  our  own, 
that  the  falsely  making  and  the  fraudulent  uttering  of  the 
same  instrument  by  the  same  person  constitutes  a  single 
offense,  and  subjects  the  guilty  party  to  but  one  penalty. 
Bentley,  J.,  in  delivering  the  opinion  of  the  court,  says: 
"  Upon  a  careful  consideration  of  the  authorities,  our  conclu- 
sion is  that  it  satisfactorily  appears  from  the  record  that  in 


I J 


656 


AMERICAN  CRIMINAL  REPORTS. 


falsely  making  and  fraudulently  uttering  the  instrument  set 
out  in  the  indictment  the  accused  committed  but  one  offense ; 
that  the  '  making '  and 'uttering'  of  the  same  instrument  bv 
the  same  party  were,  in  contemplation  of  law,  connected  and 
consecutive  jiarts  of  but  one  transaction,  and  became  and  were 
so  merged  as  to  render  the  accused  guilty  of  the  crime  of  for- 
gery, but  not  of  having  committed  a  double  crime  under  the 
statute.  It  results  that  this  double  sentence,  imposed  as  be- 
fore stated,  was  without  authority  of  law,  and  the  judgment 
pronouncing  such  sentence  must  be  reversed,  and  the  cause  re- 
manded to  the  court  of  common  pleas  for  judgment  and  sen- 
tence upon  the  verdict  of  the  jury  as  for  a  single  offense,  pur- 
suant to  law."  There  can  be  no  doubt  of  the  soundness  of 
the  doctrine  stated  in  the  foregoing  quotation.  Where  the 
different  counts  in  an  information  charge  the  same  offense,  in 
case  of  a  conviction  on  each  count,  the  rule  is  to  render  a 
single  sentence  upon  all  the  counts  for  the  one  entire  offense. 
It  follows  from  these  views  that  the  imprisonment  of  the 
prisoner  was  unlav/ful,  and  that  he  should  be  discharged. 
Writ  allowed.    The  other  judges  concur. 


Dickson  v.  State. 
(34  Tex.  Cr.  App.  — ;  28  S.  W.  815.) 
Slander  :   Evidence. 


Ona  prosocutiim  for  slander,  where  the  language  used  by  dofendant  is  a 
slang  t'.'rni,  and  nmbiRUous.  testimony  explaining  what  the  witness 
understood  by  it,  is  admissible. 


rr 


1^ 


^  I 


Appenl  from  Hill  County  Court;  W.  P.  Cunningham,  Judge. 
John  Dickson  was  convicted  of  slander,  and  api)eals. 

li.  L.  Henry,  for  the  State. 

SiMPKiNs,  J.  Appellant  was  convicted  of  slander,  and  his 
punishment  assessed  at  $150.  There  are  various  grounds  of 
error  assigned,  but  we  will  only  consider  the  most  material. 

1.    The  court  did  not  err  in  overruling  the  motion  to  quash 


DICKSON  V.  STATE. 


C5 


i)t 


ument  set 
e  offense ; 
■ument  by 
lected  and 
)  and  were 
ne  of  for- 
under  the 
)sc(l  as  be- 
judgment 
B  cause  re- 
it  and  sen- 
fonse,  pur- 
undness  of 
kVliere  the 
olfense,  in 
3  render  a 
re  offense, 
nt  of  the 
rged. 


lofpndnnt  is  a 
the   witness 


am,  Judge, 
juls. 


ler,  and  his 
grounds  of 
material, 
on  to  quash 


the  information.  It  certainly  cliarged  the  offense  of  slander, 
and  the  meaning  of  the  language  used  is  sufiiciently  stated  by 
innuendo. 

2.  There  is  no  error  in  the  general  charge  of  the  court.  It 
is  sufficiently  comprehensive,  and,  with  the  special  charges  re- 
quested and  given,  presented  the  case  to  the  jury  as  favorably 
to  appellant  as  he  could  ask. 

3.  The  appellant  complains  that  the  court  erred  in  permit- 
ting the  county  attorney  to  ask  the  witness  what  appellant 
meant  by  saying  that  •'  Ed.  Henry  was  monkeying  with  Jule 
Chambless,"  and  in  permitting  the  witness  to   .  nswer  that 
"said  Henry  was  having  carnal  knowledge  of  her,"  because 
the  question  called  for  the  opinion  of  the  witness,  who  should 
state  only  what  was  said,  and  not  what  was  meant,  that  being 
the  question  for  the  jury.    The  complaint  alleges  that  appellant 
used  the  language,  and,  by  innuendo,  stated  it  meant  "  Henry 
was  havingcarnal  knowledge  of  her,  the  said  Jule  Chambless." 
Can  the  matter  alleged  by  innuendo  be  proven  ?   It  is  held  in 
this  state  that  the  truth  of  an  innuendo  may  be  proven.    In 
Ii!(Mlc^.s  Case,  30  Tex.  A\)p.  420,  17  S.  W.  1073,  Judge  White 
says  that  having  alleged  the  slanderous  words,  with  an  innu- 
endo which  would  go  to  establish  an  offense,  if  proved,  it  was 
necessary  to  prove  the  innuendo  as  substantial!}'  as  the  slan- 
dero^..  wor'is  themselves.     See,  also,  Berrifs  Case,  27  Tex. 
App.  484;  11  S.  W.  521;  2  Whart.  Cr.  Law  (8th  Ed.),  §  1661.    It 
is  true,  Mr.  Bishop  says,  an  innuendo  does  not  admit  of  being 
sustaiiitid  by  proof.     Bish.  Cr.  Proc.  7t>3;  Townsh.  Sland.  &  L., 
§§  335,  342.     This  is  where,  under  the  rules  of  criminal  plead- 
ing, the  circumstances  necessary  to  explain  the  meaning  of 
slanderous  words  are  stated  in  the  indictment  by  way  of  in- 
ducement, and  the  only  office  of  the  innuendo  is  to  refer  the 
libelous  words  to  the  facts  so  set  forth.     13  Am.  &  Eng.  Enc. 
Law,  p.  501,  §  4;  Townsh.  Sland.  &  L.,  §§  120,  308.  and  notes  1, 
2;  I<1.,  )^§  335-337.     "With  us,  the  office  of  the  innuendo  is  en- 
larged to  explain  the  meaning  of  the  language  spoken,  and  we 
dispense  with  the  inducement  or  colloquium,  and  the  innuendo 
may  be  proven.     Now,  where  the  words  are  obviously  defam- 
atory, or  are  clear  and  unambiguous,  whether  defamatory  or 
not,  the  court  and  jury,  and  not  the  witnesses,  construe  the 
words;  and  a  witness  can  not  be  asked  how  he  understood  the 

42 


658 


AMERICAN  CRIMINAL  REPORTS. 


words,  nor  what  impression  was  produced  on  his  mind  on  hear- 
ing them,  and  the  words  are  to  be  construed  in  their  ordinary 
and  usual  sense.  When,  on  the  other  hand,  the  language  is 
ambiguous  as  to  its  import  or  signification,  and  the  words  used 
are  not  ordinary,  but  are  local,  technical  or  slang  terms,  evi- 
dence is  admissible  to  explain  the'r  meaning,  and  the  testimony 
of  hearers  is  admissible  as  to  how  they  understood  the  words. 
The  question  is  in  what  sense  the  hearer  understood  the  words, 
for  slander  and  damage  consist,  not  in  the  intent  of  the  speakf  ..•, 
but  in  the  apprehension  of  the  hearers.  Townsh.  Sland.  & 
L.,  §^  127,  384;  Dodand  v.  /Vir«<?/w>«,  23  Wend.  424;  DemaveHt 
V.  JIarhuj,  6  Cow.  70;  Smart  v.  Blaaehnrd,  42  N.  H.  137;  Bar- 
ton V.  HoIdws,  16  Iowa  252;  Smith  v.  Miles,  15  Vt.  245;  13  Am. 
&  Eng.  Enc.  Law,  385.  But  such  testimony,  which  is  admit- 
ted to  show  what  meaning  hearers  of  common  understanding 
would  and  did  ascribe  to  the  words,  is  not  conclusive  on  the 
jury.  Nelson  v.  Borchenius,  52  111.  236;  Vanderlip  v.  Roe,  23 
Pa.  St.  82;  Wimer  v.  Alhaugh  (Iowa),  42  N.  W.  587.  Hence 
we  do  not  think  the  court  erred  in  permitting  the  questions 
complained  of  to  be  asketl.  The  other  errors  assigned  are  not 
regarded  as  material,  and  the  judgment  is  affirmed. 


m 


I 


n 


Pkople  v.  IIodgkin. 

(94  Mich.  27.) 
Sodomy  :  Sufficiency  of  evidence. 

The  repeal  by  Rev.  St.  1846,  p.  730.  of  tlie  act  of  1841,  which  provided  that 
it  sliall  not  be  necessary  in  sodomy  to  prove  emission,  proof  of  penetra- 
tion being  sufficient,  revived  the  common  law  in  force  prior  to  the  pas- 
sage of  the  act  of  1841,  and  made  emission  a  necessary  ingredient  of 
the  offense,  wliich  ingredient,  thougli  it  may  be  from  penetration  and 
other  circumstances,  must  be  made  out  by  the  prosecution  in  order  to 
convict. 

Error  to  Circuit  Court,  Sanilac  County;  Watson  Beach, 
Judge. 

William  IIodgkin  was  convicted  of  sodomy,  and  appeals. 
Eeversed. 


M 


PEOPLE  V.  HODGKIN. 


659 


1(1  on  hear- 

ordinary 

mguage  is 

v^ords  used 

terms,  evi- 

testimonv 

the  words. 

the  words, 

le  speakr.', 

SI  and.  & 

Demurest 

137;  Bar- 

45;  13  Am. 

h  is  admit- 

erstanding 

5ive  on  the 

>  V.  lioe,  23 

S7.     Hence 

e  questions 

ned  are  not 


provided  that 
)of  of  penetra- 
ior  to  the  pna- 
'  ingredient  of 
'netration  and 
jn  in  order  to 


;son  Beach, 
nd  appeals. 


J.  B.  ITovcl'  and  Charles  IT.  McGinlc;/,  for  appellant. 
A.  A.  Eni%  Atty.  Gen.,  and  Wui.  II.  Burgess,  Pros.  Atty,, 
for  the  People. 

Montgomery,   J.    The    respondent  was    informed  ajjainst 
under  section  9292,  How.  St.,  and  convicted  of  the  crime  of 
sodomy.     Tlie  circuit  judge  instructed  the  jury  that  the  evi- 
dence of  the  offense  was  complete  upon  proof  of  penetration 
only.    The    defendant    assigns  error  upon  this    instruction, 
which  assignment  presents  the  only  question  which  we  deem 
it  necessary  to  consider.     The  statute  does  not,  in  terms,  de- 
fine what  shall  constitute  the  offense.    There  has   been  some 
disagreement  in  the  cases,  upon  the  question  of  whether  proof 
of  emission  is  necessary  to  establish  thn.  offense  at  the  common 
law;  the  two  offenses  of  rape  and  sodomy  having  been  re- 
garded by  some  courts  as  kindred,  so  far  as  relates  to  this 
question.     13ut,  as  stated  by  Mr.   Bishop,  "though  writers 
generally  assume  tluit  rape  and  sodomy  stand  on  common 
ground,   reflection  may  suggest  dilferences."    2  Bish.  Crim. 
Law,  §  1127.     In  England  the  question  was  not  fully  settled 
until  1781,  when  it  was  held  ihct  proof  of  emission  was  neces- 
sary to  the  consummation  of  the  offense.    IIUVs  Cme,  1  East, 
P.  C.  4:39.    See  Stafford's  Vase,  12  Coke  37.    The  American 
cases  are  not  uniform.     The  following  cases  support  the  claim 
of  the  prosecution  that  proof  of  penetration  only  is  necessary. 
Com.  V.  Thomas,  1  Ya.  Cas.  307;  Comstock  v.  State,  14  Neb.  205; 
Pennsylviinia  v.  SnUivan,  I  Add.  143.    In  North  Carolina  and 
Ohio  the  doctrine  that  emission  is  necessary  obtains.    State  v. 
Gray,  8  Jones  (N.  C),  170;    Wdllaim  v.  State,  14  Ohio   222. 
The  question  had  never  been  decided  by  the  supreme  court  of 
this  state.     But  the  legislature  in  1841  enacted  a  statute,  the 
second  section  of  which  reads :    "  Wliereas,  upon  tlie  trials  for 
the  criines  of   buggary  and  rape,    *    *    *    offenders    may 
esca])e  by  reason  of  the  difficulty  of  the  proof  which  has  been 
requiredof  the  completion  of  those  several  crimes,  for  a  rem- 
edy thereof,  be  it  enacted,  that  it  shall  not  be  necessary,  in  any 
of  these  cases,  to  ])rove  the  actual  emis.sion  of  seed,  in  order  to 
constitute  a  carnal  knowledge,  but  that  carnal  knowledge  shall 
be  deemed  com])lete  upon  proof  of  penetration  only."    By 
Rev.  St.  184(5,  p.  730,  this  statute  was  repealed.    A  subsequent 


■  j '  '■  ■ 


wm 


GOO 


AMERICAN  CRIMINAL  REPORTS. 


f^S 


I 


■'' 


i 


:*m 


statute  has  been  enacted,  which  dispenses  with  the   necessity 
of  proof  of  emission  in  rape. 

It  is  contended  that  the  effect  of  the  repeal  of  the  statute  of 
1841  is  to  revive  the  common  law,  and  such,  we  think,  is  the 
general  rule  (End.  Interp.  St.,  §  475),  although  this  rule  may 
))erhaps  be  subject  to  exception.  See  State  v.  Slanyhter,  70 
Mo.  484.  But  it  will  be  observed  that  the  act  of  1841  was  a 
clear  legislative  recognition  of  the  common-law  rule  as  laid 
down  by  the  Ohio  and  North  darolina  courts,  and  we  think 
that  the  repeal  of  this  statute  evinces  a  purpose  to  revive  the 
common-law  rule  as  it  was  then  understood  to  obtain  in  this 
state,  and  should  be  given  force  in  determining  what  the 
common-law  rule  in  this  state  then  was,  prior  to  the  enactment 
of  that  statute.  We  think,  therefore,  that  ])roof  of  emission 
was  a  necessary  ingredient  to  the  offense,  and,  while  it  may  be 
inferred  from  proof  of  penetration,  and  the  other  circum- 
stances of  the  case,  yet  it  is  a  fact  which  the  prosecution  must 
make  out  before  a  conviction  can  be  claimed,  and  the  instruc- 
tion was  therefore  erroneous.  Judgment  will  be  reversed,  and 
a  new  trial  ordered.  The  prisoner  will  be  remanded  to  the 
custody  of  the  sheriff  of  Sanilac  county.  The  other  justices 
concurred. 

Note. — What  constitutes. — This  oflfonse  consists  in  a  carnal  knowledge 
committed  against  the  order  of  nature  by  man  with  man;  or  in  the  same 
imnatural  manner  with  woman;  or  by  man  or  woman,  in  any  manner,  with 
beast.     1  Russ.  Crime,  p.  937. 

"  Sodomy,  whicli  is  the  abominable  and  detestable  crime  against  nature 
known  to  the  common  law,  is,  by  article  343  of  the  Penal  Code  made  an 
offense"  in  this  state;  and,  being  undefined,  we  must  look  to  the  common 
law  for  the  elements  of  this  crime.  Ex  parte  Bergen,  14  Tex.  App.  52.  '  To 
constitute  this  offense,  the  act  must  be  in  that  part  where  sodomy  isitsually 
committed.  The  act  in  a  child's  mouth  does  not  constitute  the  offense.' 
1  Russ.  Crime,  p.  9;}7;  Rex  v.  Jacobs,  Russ.  &  R.  331.  Tlie  evidence  dis- 
closing the  act  relied  on  in  this  case  wiis  committed  in  a  child's  mouth. 
However  vile  and  detestable  the  act  proved  may  be,  and  is,  it  can  consti- 
tute no  offense,  because  not  contemplated  by  the  statute,  and  is  not  em- 
braced in  the  crime  of  sodomy.    Prindle  v.  State,  81  S.  W.  300. 


",.,.; 


necessity 

statute  of 

ink,  is  the 

rule  may 

nnjhter,  70 

1841  was  a 

ale  as  laid 

.  we  think 

revive  the 

ain  in  this 

what  the 

enactment 

)f  emission 

it  may  be 

er  circum- 

ution  must 

he  instruc- 

versed,  and 

ided  to  the 

ler  justices 


al  knowledge 
r  in  the  same 
manner,  with 

igainst  nature 

'ode  made  an 

tlie  ct)mmon 

Lpp.  52.      '  To 

omy  is  lisually 

the  offense."' 

evidence  dis- 

.•hild's  mouth. 

it  can  consti- 

nd  is  not  em- 

00. 


STATE  V.  BUTLER.  ggj 


State  v.  Butf-er. 

(8  Wash.  194.) 

SoLiciTiN-a  Commission  OF  Crime:    Adultenj— Attempt  to  commit. 

Solicitation  to  commit  adultery  is  not  an  attempt  to  commit  the  crime. 

Appeal  by  the  state  from  an  order  of  the  superior  court 
for  Douglas  county,  granting  defendant's  motion  to  arrest 
judgment  after  a  verdict  convicting  him  of  an  attempt  to  com- 
mit adultery.    Ajfirmed. 

The  facts  are  stated  in  the  opinion. 

Mr.  E.  K.  Penderrjast,  for  the  appellant. 
No  appearance  for  respondent. 

Scott,  J.,  delivered  the  opinion  of  the  court. 

The  defendant  was  charged  with  attempting  to  commit 
adultery,  and  was  tried  and  convicted.  The  body  of  the  infor- 
mation is  as  follows :  Comes  now  E.  K.  Pendergast,  prose- 
cuting attorney  for  Douglas  county,  in  the  state  of  Wash- 
ington, and  by  this  his  information,  as  provided  by  law, 
charges  one  James  liutler  with  the  crime  of  attempting  to 
commit  adultery  in  the  following  manner,  to  wit :  He,  the 
said  James  Butler,  on  the  3d  day  of  September,  A.  D.  1892, 
in  the  countx'^  of  Douglas  and  state  of  Washington,  did  unlaw- 
fully, wilfully,  maliciously  and  feloniously  intend  then  and 
there  to  have  carnal  knowledge  of  the  body  of  one  Caroline 
Skett,  the  lawful  wife,  then  and  tiiere,  of  one  Julius  Skett,  who 
was  then  alive ;  and  the  said  James  Butler,  in  pursuance  of  the 
said  unlawful,  wilful,  malicious  and  felonious  intent,  then  and 
there  falsely,  wickedly,  unlawfully  and  maliciously,  by  means 
of  promises  of  the  payment  of  money,  and  by  direct  invitation 
by  word  of  mouth,  and  by  laying  on  of  hands  by  the  said 
James  Butler  upon  the  person  of  the  said  Caroline  Skett,  in 
a  lewd  and  lascivious  manner,  and  in  the  absence  of  all  other 
persons  except  tlic  said  James  Butler  and  the  said  Caroline 
Skett,  and  by  various  other  means,  did  solicit  and  incite,  and 
endeavor  to  persuade  and  procure  the  said  Caroline  Sk^tt  to 
have  sexual  intercourse,  then  and  there,  with  him,  the  said 
James  Butler ;  and  the  said  James  Butler  was  then  and  there 


"1W' 

y,'   1 

:'iij 

'  w 

M- 

1 

6G2 


AMERICAN  CRIMINAL  REPORTS. 


^^1 


.''"i    .'•>'r. 


I 


the  lawful  husband  of  one  certain  person  other  than  the  said 
Caroline  Skett,  and  whose  true  name  is  to  said  prosecuting 
attorney  unknown — all  of  wliich  is  contrary  to  the  statute  in 
such  cases  made  and  provided,  and  against  the  peace  and 
dif^nity  of  the  state  of  Washington."  A  motion  in  arrest  of 
judgment,  on  the  ground  that  the  information  did  not  charge 
any  offense  was  made,  which  the  court  granted,  and  ordered 
the  defendant  discharged.     The  state  a])|)eals. 

No  brief  has  been  filed  by  the  respondent.  From  the  argu- 
ment of  U()pellant  is  seems  that  some  question  was  raised 
whether  Jidultery  is  a  crime  in  this  state;  but  without  going 
into  the  question  as  to  whether  our  statutes  upon  this  subject, 
which  were  enacted  while  we  were  under  a  territorial  form  of 
government,  were  repealed  by  virtue  of  certain  congressional 
legislation  affecting  the  territories,  we  will,  for  the  j)urposes 
of  this  case,  take  it  for  granted  that  they  are  in  force.  'No 
statement  of  facts  was  settled,  and  the  testimony  introduced 
at  the  trial  is  not  here.  The  only  question  presented  and  ar- 
gued by  appellant  is  as  to  whether  solicitation  to  commit 
adultery  is  an  attempt  to  commit  adultery.  It  is  not  contended 
that  Caroline  Slcett  was  a  consenting  party,  or  willing  to  com- 
mit the  act  with  the  defendant.  The  information  contains  no 
such  allegation,  and  the  case  stands  as  though  she  was  an  un- 
willmg  and  resisting  party.  It  is  not  contended  that  there 
was  any  act  on  the  part  of  the  defendant  .g<^)ing  to  an  attempt 
beyond  soliciting  the  said  Cart)line  Skett,  and  endeavoring  to 
obtain  her  consent.  Is  mere  solicitation  an  attempt  to  commit 
adultery?  It  being  impossible  for  one  alone  to  commit  adul- 
tery, as  that  requires  the  co-operation  of  two  persons,  it  would 
seem  to  follow,  logically,  that  one  acting  singly  couhl  not  make 
an  attempt.  One  person  could  no  more  attempt  to  commit 
adultery  than  he  could  attempt  to  commit  a  riot,  which,  under 
our  statutes,  requires  the  participation  of  tiiree  or  more  per- 
sons. The  instances  given  in  the  books,  where  the  solicitation 
of  another  to  commit  a  crime  is  held  to  be  an  offense,  gener- 
ally relate  to  those  acts  or  crimes  which  can  l)e  ])erformed  or 
committed  by  one  person,  or  where  the  solicitation  to  commit 
the  crime  is  an  offense  in  itself,  as  distinguished  from  an  at- 
tempt. It  is  urged  that  a  person  may  be  convicted  of  adul- 
tery, or  of  an  attempt  to  commit  adultery,  altliough  not  a 
direct  participant  in  the  act,   by  reason  of  aiding  or  abet- 


an  the  said 
)rosecuting 
statute  in 
peace  and 
in  arrest  of 
not  charge 
nd  ordered 


n  the  argu- 
was  raised 
lout  going 
his  subject, 
•ial  form  of 
ngressional 
10  ])urposes 
force.    No 
introduced 
ted  and  ar- 
te commit 
t  contended 
ling  to  com- 
contains  no 
}  was  an  un- 
that  there 
►  an  attempt 
leavoring  to 
)t  to  commit 
ominit  adul- 
)ns,  it  wouM 
ihl  not  make 
>t  to  commit 
vliieli,  under 
)r  more  per- 
;  solicitation 
ense,  gener- 
)orformed  or 
n  to  commit 
from  an  at- 
ted  of  adul- 
liough  not  a 
ling  or  abet- 


STATE  V.  BUTLER. 


003 


ting:  but  in  such  a  case,  where  an  attempt  is  cliarged  against 
such  third  person,  it  shouUl  appear  tiiat  there  were  two 
persons  willing  to  commit  the  act  of  adultery,  and  tliat 
something  was  done  in  the  way  of  an  attempt.  The  cases 
upon  this  subject  are  very  limited  in  number.  The  case 
of  S(nte  V.  Avert/,  7  Conn.  200,  18  Am.  Dec.  105,  cited  by  coun- 
sel for  appellant,  which  was  decided  in  1S28,  doos  not  sustain 
his  contention.  That  case  was  based  upon  a  letter  sent  bv 
the  defendant  to  the  wife  of  another  man,  containing  words 
importing  that  she  had  acted  libidinously  toward  the  writer, 
and  inviting  her  to  an  assignation  for  adulterous  purposes; 
and  it  w^as  held  that  the  writing  and  sending  of  such  a  letter 
was  libelous. 

It  was  further  said  that  it  was  immaterial  to  inquire  whether 
the  facts  stated  in  the  information  amounted  to  libel  or  a 
solicitation  to  commit  a  greater  crime,  for,  if  they  constituted 
an  indictable  offense  within  the  jurisdiction  of  the  superior 
court,  it  was  sutticient  for  the  purposes  of  that  case.  It  was 
not  decided  that  solicitation  was  an  attempt  to  commit 
adultery.  In  Smith  v.  Coin.,  54  Pa.  209,  93  Am.  Dec.  090, 
decided  in  1807,  it  was  held  that  such  solicitation  did  not 
amount  to  an  attempt. 

A  distinction  has  been  sought  to  be  drawn  in  this  particular 
to  the  effect  that  solicitation  to  comuiit  adultery  is  indictable 
as  an  attempt  in  those  states  where  adultery  is  a  felony,  which 
was  the  case  in  the  state  of  Connecticut,  while  in  Pennsyl- 
vania adultery  was  but  a  misdemeanor.  The  distinction  at- 
tempted to  be  drawn,  it  seems  to  us,  is  not  sound  in  principle. 

It  is  based  on  the  ground  that  in  trivial  misdemeanors  the 
law  will  look  upon  an  attempt  to  commit  them  as  not  of 
sufficient  gravity  to  justify  or  call  for  punishment.  The  de- 
cision of  the  case  last  cited,  however,  was  not  founded  upon 
this  distinction,  although  it  recognizes  the  fact  that  such  a  one 
has  been  sometimes  made.  In  citing  State  v.  Avert/,  the  court 
evidently  entertained  a  different  view;  the  opinion  says :  "  An 
attempt  to  commit  a  misdemeanor  is  a  misdemeanor,  whether 
the  offense  is  created  by  statute  or  was  an  offense  at  com- 
mon law."  These  were  the  words  of  liaron  Parke  in  the  case 
of  Hex  V.  lioderk-h,  7  Cor.  *fe  P.  795,  delivered  in  the  year 
1837.  They  have  been  adopted  by  the  compilers  on  criminal 
law.     1  Russell,  Crimes,  40;  1   Archbold  Cr.  PI.  19;  Whait. 


% 


m 


06 1 


AMERICAN  CRIMINAL  REPORTS. 


■¥i 


¥'^  ill 


&t:  m 


m-  r:k 


Crim.  L.  79,  S73.  And  apparently  this  had  the  sanction  of  the 
court.  The  reasons  given  in  that  case  showing  why  solicita- 
tion should  not  bo  held  an  attempt  to  commit  adultery  a])i)ly 
with  equal  force  whether  adultery  be  a  misdemeanor  or  a 
felony.  These  relate  to  the  difficulty  of  determining  what  is 
a  solicitation.  "  What  expressions  of  the  face,"  says  the  '^jourt, 
"  or  double  etitendres  of  the  tongue,  are  to  be  adjudged  solicita- 
tions ?  What  freedoms  of  manners  amount  to  this  crime  i  Is 
every  cyprian  who  nods  or  winks  to  the  married  men  she 
meets  upon  the  sidewalk  indictable  for  soliciting  to  adultery  i 
And  could  the  law  safely  undertake  to  decide  what  recogni- 
tions in  the  street  were  chaste  and  what  were  lewd  ?  It  would 
be  a  dangerous  and  difticult  rule  of  criminal  law  to  administer." 
If  adultery  is  a  crime  in  this  state  it  is  a  felony,  and  if  solicita- 
tion is  an  attempt  to  commit  adultery  it  is  a  criminal  offense 
here.     Penal  Code,  §  303. 

It  will  be  observed  that  this  section  makes  no  distinction 
between  an  attempt  to  commit  a  felony  and  an  attempt  to 
commit  a  misdemeanor,  except  astothedegreeof  punisiiment; 
and  the  distinction  above  mentioned  could  not  be  recognized 
here  even  if  adultery  was  but  a  misdemeanor  under  the 
statutes.  It  may  be  well  to  note,  however,  what  some  of  the 
courts  and  law  writers  have  said  relaiing  to  the  subject  under 
consideration.  In  the  case  of  Com.  v.  WiUard,  22  Pick.  476, 
it  was  held  that  the  purchaser  of  spirituous  liquor,  sold  in  vio- 
lation of  the  statutes,  does  not  subject  himself  to  any  jienalty, 
either  at  common  law,  as  inducing  the  seller  to  commit  a  mis- 
demeanor, or  under  the  statute.  It  was  said  in  that  case  :  '•  It 
is  difficult  to  draw  any  precise  line  of  distinction  between  the 
cases  in  which  the  law  holds  it  a  misdemeanor  to  counsel,  en- 
tice or  induce  another  to  commit  a  crime,  and  where  it  does 
not.  In  general  it  has  been  considered  as  applying  to  cases  of 
felony,  though  it  has  been  held  that  it  does  not  depend  upon 
the  mere  legal  and  technical  distinction  between  felony  and 
misdemeanor.  One  consideration,  however,  is  manifest  in  all 
the  cases,  and  that  is  that  the  offense  proposed  to  be  committed 
by  the  counsel,  advice  or  enticement  of  another  is  of  a  high 
and  aggravated  character,  tending  to  breaches  of  the  peace 
or  other  great  disorder  and  violence,  being  what  are  usually 
considered  mala  in  ae,  or  criminal  in  themselves,  in  contradis- 
tinction to  mala  pi'ohlblta,ov  acts  otherwise  indifferent  than  as 


STATE  V.  BUTLER. 


6G5 


ion  of  the 
y  solicita- 
ery  ai)i)ly 
anor  or  a 
ig  wliat  is 
the  '^jourt, 
(1  solicita- 
rime  i     Is 

men  she 
idultery  'i 
t  recogni- 

It  would 
minister." 
if  solicita- 
lal  offense 

distinction 
ttempt  to 
inisiiment; 
recognized 
under  the 
ime  of  tlie 
»ject  under 
Pick.  476, 
5ohl  in  vio- 
ly  penalty, 
unit  a  mis- 
;  case  :  '•  It 
itweon  tiie 
ounsel,  en- 
3re  it  does 

to  cases  of 
pend  upon 
teh)ny  and 
ifest  in  all 
committed 

of  a  high 

the  peace 
ire  usually 

contradis- 
ent  than  as 


they  are  restrained  by  positive  law."  In  the  case  of  Co?//,  v. 
Ilarrbujton,  3  Pick.  26,  it  was  held  that  the  letting  of  a  house 
for  the  i)urposo  of  prostitution  with  the  intent  tliat  it  should 
be  thus  used,  was  an  olfense  at  common  law.  The  keeiiing  of 
such  a  disorderly  house  was  not  a  felony  but  a  misdemeanor 
of  a  high  and  aggravated  character,  tending  to  general  disor- 
derly breaches  of  the  j)eace  and  a  common  nuisance  to  the 
community.  There  was  no  statute  in  Massachusetts  relating 
to  it. 

In  "Wharton  on  Criminal  Law,  9th  Ed.,  §  179,  in  speaking  of 
solicitations,  the  author  says:     "Are  solicitations  to  commit 
crime,  independently  indictable  ?    They  certainly  are,  as  has 
been  seen,  when  they,  in  themselves,  involve  a  breach  of  the 
public  ])eace,  as  is  the  case  with  challenges  to  fight  and  sedi- 
tious adtlresses.     They  are  also  indictable  when  their  object 
is  interference  with  public  justice;  as,  where  a  resistance  to 
the  execution  of  a  judicial  writ  is  counseletl  or  perjury  is  ad- 
vised or  the  escape  of  a  j)risonor  is  encouraged."     "  But,"  says 
the  author,*'  is  a  solicitation  indictable  when  it  is  not  either  ( 1)  a 
substantive  indictable  offense,  as  in  tlie  instance  just  nameil,  or 
(2)  a  stage  toward  an  independent  consummated  offense  i" 
And  he  says :  "  The  better  opinion  is  that,  where  the  solicitation 
is  not  in  itself  a  substantive  offense,  or  where  there  has  bc.'cn  no 
progress  made  toward  the  consummation  of  the  indejiendent 
offense  attempted,  the  question  whether  the  solicitation  is,  by 
itself,  the  subject  of   penal  ])rosecution,  must  be  answered  in 
the  negative;"  and  he  maintains  that  solicitation  is  not  an  at- 
tempt to  commit  adultery.     In  speaking  of  the  subject  farther, 
he  says :     "  For  we  would  be  forced  to  admit,  if  we  hold  that 
solicitations  to  ori;ninality  are  gonoi-.tily  indictable,  that  th3 
propagandists,  even  in  conversation  of  agrarian  or  communis- 
tic theories,  are  liable  to  criminal  prosecution;  and    hence  the 
necessary  freedom  of  speech  and  of  the  press  would  be  greatly 
infringed.     It  would  be  hard  also,  we  must  agree,  if  we  main- 
tain such  general  responsibility,  to  defend  in  prosecutions  for 
soliciting  crime,  the  publishers  of  Byron's  Don  Juan,  of  Rous- 
seau's Emile,  or  of  Goethe's  Elective  Affinities.    Lord    Ches- 
terfield in  his  Letters  to  His  Son,  directly  advises  the  latter  to 
form  illicit  connections  with  married  women.     Lord   Chester- 
field, on  the  reasoning  here  contested,  would  be  indictable  for 
solicitation  to  adultery.     Undoubtedly,  when  such  solicitation* 


^ip 


660 


AMERICAN  CRIMINAL  REPORTS. 


M 


iiro  so  publicly  and  indecently  made  ns  to  produce  public 
scandal,  they  are  indictable  as  nuisances  or  as  libels;  but  to 
make  bare  solicitations  or  allurements  indictable  as  attem])t8, 
not  only  unduly  and  perilously  extends  the  scope  of  penal 
adjudication  but  forces  on  the  courts  i)sycholo<;:ical  questions 
which  they  are  incomi)etent  to  decide,  and  a  branch  of  busi- 
ness which  would  make  them  despots  of  every  intellect  in  the 
land.  What  human  judge  can  determine  that  there  is  such  a 
necessary  connection  between  one  man's  advice  and  another 
man's  action  as  to  make  the  former  the  cause  of  the  latter  i 
An  attempt,  as  has  been  stated  is  such  an  intentional  pre- 
liminary guilty  act  as  will  apparently  result  in  the  usual  course 
of  natural  events,  if  not  hindered  by  extraneous  causes,  in 
the  commission  of  a  deliberate  crime.  IJut  this  can  not  be 
affirmed  of  advice  given  to  another,  which  advice  such  other 
person  is  at  full  liberty  to  accept  or  reject.  Following  such 
reasoning,  several  eminent  European  jurists  have  declined  to 
regard  solicitations  as  indictable,  when  there  is  interj>(»sed 
between  the  bare  solicitation  on  the  one  hand,  and  the  ])roposed 
illegal  act  on  the  other,  the  resisting  will  of  another  person, 
which  other  person  refuses  assent  and  co-oi)eration."  In  a 
somewhat  later  work  (1  Bishop  Crim.  L.)  a  partially  contrary 
view  is  indorsed.  This  author  goes  further.  In  section  768, 
he  says :  "  Though,  to  render  a  solicitation  indictable,  it  is, 
as  in  other  attemj)ts,  immaterial  in  general  whether  the  thing 
])roposed  to  be  done  is  technically  a  felony  or  a  misdemeanor, 
still,  as  the  soliciting  is  the  first  step  only,  in  a  gradation  reach- 
ing to  the  consummation,  the  thing  intended  must,  on  the 
principle  already  explained,  be  of  a  graver  nature  than  if  the 
step  lay  further  in  advance."  lie  is  of  the  opinion  that  solic- 
itation is  an  attempt  to  comi  it  adultery  as  a  necessary  step  or 
ingredient  in  the  offense.     Section  767. 

The  question  is  a  somewhat  vexed  one  under  the  conflict  of 
authorities  relating  to  the  various  phases  of  the  subject.  The 
inquiry  in  this  case  is  not  whether  solicitation  to  commit 
adultery  is  an  offense  in  itself  of  a  distinct  character,  but 
whether  it  is  an  offense  because  it  is  an  attempt  to  commit 
adultery.  The  instances  of  such  solicitation  which  have  been 
brought  to  the  attention  of  the  courts  are  but  few  indeed, 
extending  over  a  long  period  of  years;  but  resort  can  be  had 
to  some  of  a  kindred  nature,  or  perhaps,  more  properl}',  which 


STATE  V.  BUTLER. 


667 


e  public 
Is;  but  to 
attomj)ts!, 
of  penal 
questions 
li  of  busi- 
ed in  the 
is  such  a 
another 
le  latter? 
ional  pre- 
ual  course 
causes,  in 
m  not  be 
uch  other 
win<^  such 
eclined  to 
nter])<)se(l 
3  proposed 
er  person, 
pn."     In  a 
Y  contrary 
3ction  768, 
;able,  it  is, 
the  thing 
demeanor, 
tion  reach- 
it,  on   the 
ban  if  the 
that  solic- 
ry  step  or 

conflict  of 
ject.  The 
iO  commit 
acter,  but 
to  commit 
have  been 
w  indeed, 
an  be  had 
rly,  which 


have  a  bearing  on  some  of  the  principles  involved.  In  the  case 
of  7iV.r  V.  Butler,  0  Car.  tfe  P.  3CS,  decided  in  1834,  souietimes 
cited,  it  was  said :  "An  attempt  to  commif  a  misdemeanor 
created  by  statute,  is  a  misdemeanor  itsel'.","  citing  LW  v. 
JIarrh,  0  Car.  &  P.  121).  In  /S/uomon  v.  Co.a.,  14  Pa.  2*i»!,  it 
was  held  that  a  conspiracy  to  commit  adultery  was  not  an 
offense;  and  in  Jlilcs  v.  /State;  58  Ala.  31)0,  a  similar  decisicm 
was  arrived  at. 

Adultery  was  but  a  misdemeanor,  however,  in  that  state  also, 
though  it  is  not  apparent  that  any  importance  Avas  attached  to 
this  fact  in  either  of  these  cases.  In  Cox  v.  Peoj/fe,  82  111.  JUl, 
it  was  held  that  solicitation  to  commit  incest  was  not  an 
attempt  to  commit  the  crime  of  incest,  which  was  a  felon  v.  We 
have  not  failed  to  note  the  criticism  of  this  case,  and  the  cita- 
tion it  relies  on  from  Wharton's  Criminal  Law,  above  quoted 
by  Mr.  Bishop  in  his  valuable  work.  ]Jut  the  case  also  relies 
on  Smith  V.  Com.  and  Com.  v.  Wilhtrd,  »uj>/'<i;  and  these  cases 
are  authority,  as  Ave  view  them,  with  other  authorities  herein 
cited,  on  the  ground  that  the  distinction  mentionetl  sometimes 
drawn  between  attempts  to  commit  felonies  and  att('m])ts  to 
commit  misdemeanors,  or  attempts  to  commit  grave,  as  distin- 
guished from  trivial,  misdemeanors,  is  not  a  Avell  established 
one,  nor  well  founded  Avhen  viewed  merely  as  an  attempt, 
and  not  as  a  substantive  offense. 

Now  it  seems  to  us  that  solicitation  to  commit  adultery  is 
no  part  of  the  act  of  adultery  itself,  and  consequently  can  not 
hi?  held  to  be  an  attempt.  What  is  it  ?  It  involves  tlie  expres- 
sion of  a  desire  and  willingness  on  the  part  of  one  person  to 
commit  the  act  of  adultery  with  another,  and  an  attempt  to 
get  that  person's  consent,  but  no  more.  Follow  it  a  step 
farther.  Suppose  the  consent  of  the  other  pei-son  is  obtained, 
and  in  pursuance  of  it  if  tiiere  is  no  immediate  op]X)rtunity  to 
gratify  the  then  mutual  desire,  a  conspiracy  is  entered  into  to 
commit  the  offense  between  these  persons,  which  involves  the 
expressed  consent  and  agreement  of  both  of  them,  and  some 
understanding  between  them  as  to  when  and  where  the  offense 
shall  be  committed,  and  the  naming  of  a  propitious  time  and 
place  to  commit  it.  It  seems  this  would  be  much  more  in  the 
way  of  an  attempt  than  the  case  presented  here;  and  if  that 
does  not  amount  to  an  offense  or  an  attempt,  how  can  it  bo 
said  that  such  an  intention  and  willingness,  coupled  with 


m 


Ml 


!!l 


mm 


COS 


AMERICAN  CRIMINAL  REPORTS. 


solicitation  upon  tho  part  of  ono  person  only,  can  amount  to 
an  attempt  to  commit  tho  offensi? '{ 

Wo  aro  of   tho  opinion  that  tho  judgment  of  tho  superior 
court  should  bo  aifirmed. 

DuNHAU,  Ch.  J.,  and  IIoyt,  Stiles  and  Anders,  JJ.,  concur. 


u 


Note. — Not  pnnishdJiie  as  anfinult. — Vorhiilly  soliciting  a  woniiin  for 
sexual  intercoui'Hu  dot's  not  coiistitutu  UMsault.  State  v,  I'rUstly,  74 
Mo.  24. 

An  indictniont  for  assault  with  intent  to  commit  rape  i»  not  Hustaim-il  by 
evidfuco  of  mere  Holicitution.    State  v.  Ownlfy,  102  Mo.  678. 

Ah  attempt. — Solicitation  to  commit  incest  is  not  indictable  an  an  attempt. 
Co.r  V,  People,  82  111.  101.  Giving  |K)ison  to  anotlier,  and  trying  to  perHuatUi 
liiin  to  put  it  whore  it  will  kill  a  third  person,  is  not  an  attempt  to  commit 
murder.     Stoble  v.  Com.,  9.5  Pa.  818. 

It.  however,  was  held  in  GriJJln  v.  State,  26  Ga.  493,  that  soliciting  another 
to  commit  robbery  is  indictable  as  an  attempt. 

One  giving  encouragement  to  another  to  commit  araon.  which  is  consum- 
mated, may  be  indicted  us  a  principal  in  the  attempt.  lieg.  v.  Vlaytun,  1 
Car.  &.  K.  128. 

Solicitation  to  commit  murder  was  a  capital  felony  under  Stat.  Oi«o.  II, 
ch.  iJ4,  g  10.  It  was  held  in  State  v.  Haiji'H,  78  Mo.  307,  that  soliciting  com- 
mission of  arson  constitutes  "  An  act  toward  tho  commission  of"  arson 
within  the  provisions  of  a  statute  making  such  act  punishable. 

A  crime  in  itself. — In  Com.  v.  Flagg,  13ri  Mass.  545,  it  was  declared  an 
indictable  offense  for  one  to  solicit  another  to  commit  a  felony,  althouji,  i 
the  crime  advised  is  not  committed.  See  also  Coin.  v.  Willard,  22  Pick. 
476;  Rex  v.  Butler,  6  Car.  &  P.  368. 

Solicitation  to  commit  murder.— Seii  Reg.  v.  Murphy,  Jebb.  C.  C.  (Ir.) 
315;  Riy.  v.  Banks,  12  Cox  C.  C.  393;  Smith  v.  Com.,  54  Pa.  St.  209.  Arson  : 
Pt-oplc  V.  Bush,  4  Hill.  133;  State  v.  Bowers,  15  Low.  Rep.  Ann.  199.  J^ar- 
eeny :  Rex  v.  Higgins,  2  East.  5;  Re,v  v.  Calliiigwood,2  Ld.  Raym.  1110. 
Assault:  United  States  v.  Lyles,  4  Cranch  C.  C.  469. 


Evans  v.  United  States. 


W:'i'3 


(153  U.  S.  581.) 

Statutory  Misdemeanor:    Misappropriation  of  national  bank  notes. 

1,  An  indictment  should  charge  the  crime  alleged  to  have  been  com- 
mitted with  precision  and  certainty,  and  every  ingredient  of  which  it 
is  composed  must  be  accurately  and  clearly  alleged;  but  it  is  not  nec- 
essary in  framing  it  to  set  up  an  impracticable  standard  of  particular- 


nount  to 
superior 

,  concur. 

•oman  for 
riintly,   74 

istaim'd  l)y 

in  attempt. 

:()  iitTHuade 

to  coinniit 

ins  anothtT 

in  conaum- 
Cluytun,  I 

it.  Gi>o.  II, 

•iting  coin- 

of"  arson 

Icclan'tl  an 
y,  altlioiig  1 
</,  23  Pick. 

C.  C.  (Ir.) 
)9.     Arson : 

199.  Jjir- 
iaym.  1110. 


bank  notes. 

been  com- 

of  which  it 

is  not  nec- 

particular- 


EVANS  r.  UNITED  STATES. 


600 


ity,  whcnhy  the  Rovernni -nt  may  he  j-ntrapiH-d  i.ito  making  alleRa- 
tionH  wlucii  it  vvoiikl  l)e  iiniHiHsil.'e  to  prove. 

2.  Ai»plyiriK  thin  ruk'.  th»'  ei>;Jiti>  coui-t  in  the  imUctment,  eharninR  the 

priHoner  witii  unlawfully  proeuriiiK  the  Murmi(k'r  and  delivery  Ut  hiin- 
Bt'lf  of  the  funds  of  a  national  bankol  which  he  was  a  director,  and  the 
fourteenth  count  charKiuK  him  witii  knowingly  and  fraiididentiy  aid- 
ing in  procuring  tlie  discount  of  unsecured  paper  hy  the  hank,  are 
examined  in  detail,  and  are  held  to  bo  HufHuient  to  sustain  the  convic- 
tion. 

3.  A  verdict  of  guilty,  entered  uixm  all  tlio  counts  of  an  indictment,  should 

stand  if  any  one  of  them  is  good. 

If.  L.  Cnrmn  and  7?.  E.  Sihapley,  for  plaintiff  in  error. 
AhhH  Atfi/  Geii,  Coiu'iiil,  for  the  United  States. 

]\rr.  Justice  liKowN,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

This  case  involves  the  sufficiency  of  an  indictment  for  the 
wilful  misapplication  of  tlio  funds  of  a  national  bank,  in  vio- 
lation of  section  .52(i'.),  Rev.  St. 

A  rule  of  criminal  pleadin<^  which  at  one  time  obtained  in 
some  of  the  circuits,  and  i)L>rliaps  received  a  qualified  sanction 
from  this  court  in  U.  S.  v.  Mills,  7  Pet.  1 38,  that  an  indictment 
for  a  statutory  misdemeanor  is  sufficient  if  the  offense  bo 
charged  in  the  words  of  the  statute,  must,  under  more  recent 
decisions,  be  limited  to  cases  where  the  words  of  the  stat- 
ute themselves,  as  was  said  by  this  court  in  U.  S.  v.  Carll,  105 
U.  S.  fill,  "fully,  directly  and  expressly,  without  any  uncer- 
taintv  or  ambiguity,  set  forth  all  the  elements  necessary  to 
constitute  the  offense  intended  to  be  punished."  The  crime 
must  be  charged  with  i)recision  and  certainty,  and  every  in- 
gredient of  which  it  is  composed  must  be  accurately  and  clearly 
alleged.  U.  S.  v.  Cook,  17  Wall.  IfiS;  U.  S.  v.  Crv'tManl\  92 
U.  S.  542,  558.  "  The  fact  that  the  statute  in  question,  read  in 
the  light  of  the  common  law,  and  of  other  statutes  on  the  like 
matter,  ena'.;les  the  court  to  infer  the  intent  of  the  legislature, 
does  not  dispense  with  the  necessity  of  alleging  in  the  indict- 
mf  it  all  the  facts  necessary  to  bring  the  case  within  that 
intent."     U.  S.  v.  Carll,  supra. 

Even  in  the  cases  of  misdemeanors,  the  indictment  must  be 
free  from  all  ambiguity,  and  leave  no  doubt  in  the  minds  of 
the  accused  and  the  court  of  the  exact  offense  intended  to  be 
charo-ed,  not  only  that  the  former  may  know  what  he  is  called 


670 


AMERICAN  CRIMINAL  REPORTS. 


*-    Bi 


upon  to  meet,  but  that,  upon  a  plea  of  former  acquittal  or  con- 
viction, the  record  may  siiow  with  accuracy  the  exact  offense 
to  which  the  plea  relates.  U.  S.  v.  Siimnons,  96  U.  8.  300;  [\ 
S.  V.  Iless,  124  U.  S.  483;  Pettihone  v.  U.  &'.,  148  U.  S.  197;  I/i 
re  Greene,  52  Fed.  R.  104. 

The  section  in  question  in  this  case  was  before  this  court  in 
U.  S.  V.  Bi'iiton,  107  U.  S.  655,  in  which  the  wilful  misapj)!!- 
cation  inade  an  offense  by  this  statute  was  delined  to  be  '"  a 
misapj'l'i  iition  for  the  use,  benefit,  or  gain  of  the  party 
charged,  or  of  some  company  or  person  other  than  the  asso- 
ciation," and  that  to  constitute  such  an  offense  there  must  be 
a  conversion  to  tlie  use  of  the  offender,  or  of  some  one  else, 
of  the  moneys  or  funds  of  the  association  by  tlie  party 
charged.  It  was  said  that  a  count  which  merely  charged  a 
maladministration  of  the  affairs  of  the  bank,  rather  than  a 
criminal  misapplication  of  its  funds,  was  insufficient.  "  It  would 
not,"  said  Mr.  Justice  Woods, "  be  sufficient  simply  to  aver 
that  the  defendant  '  wilfully  misapplied '  the  funds  of  the 
association.  *  *  *  There  must  be  averments  to  show  how 
the  application  was  made,  and  that  it  was  an  unlawful  one." 
The  case  again  came  before  this  court  in  lOS  U.  S.  199,  and  it 
was  then  held  that  the  declaring  of  a  dividend  by  the  association 
when  there  were  no  net  profits  to  pay  it  was  not  a  criminnl 
application  of  its  funds,  but  an  act  of  maladministration, 
which,  while  it  might  subject  the  association  to  a  forfeiture  of 
its  charter,  and  the  directors  to  a  personal  liability  for 
damages,  did  not  render  them  liable  to  a  criminal  prosecution. 
Again  in  U.  S.  v.  Northvurij,  120  U.  S.  327,  it  was  held  not  to 
be  necessary  to  charge  that  the  moneys  and  funds  alleged  to 
have  been  misapplied  had  been  previously  intrusted  to  the 
defendant,  since  a  wilful  and  criminal  misap|)lication  of  such 
funds  might  be  made  by  its  officer  or  agent  without  having 
previously  received  them  into  his  manual  possession.  See, 
also,  Claassen  v.  U.  S.,  142  U.  S.  140. 

The  counts  of  this  indictment  may  be  divided  into  three 
general  classes:  First,  those  charging  the  defendant  with 
procuring  the  surrender  and  delivery  to  himself  of  the  funds 
of  the  bank,  and  which,  for  convenience,  may  be  termed  the 
*'  surrender  and  delivery "  counts;  second,  those  based  ujwn 
the  illegal  discount  of  unsecured  paper,  and  which  may  be 
termed  the  "  unlawful  discount"  counts;  and  third,  those  in 


:l 


EVANS  V.  UNITED  STATES. 


671 


il  or  con- 
off  en  so 
300;  r. 

I.  197;  III 

court  in 
misap|)li- 

to  be  "  a 
:he  party 
the  asso- 

must  be 

5  one  else, 

;lie   party 

barged  a 

er  than  a 

It  would 
y  to  aver 
Is  of  the 
show  Ijow 
v'ful  one.'" 
[91>,  and  it 
issociation 
a  criminal 
nistration, 
rfeiture  of 
bility  for 
•osecution. 
leld  not  to 
alleged  to 
;ed  to  the 
on  of  such 
lut  having 
5ion.     See, 

into  three 
dant  with 
the  funds 
ermed  the 
based  u^^on 
ch  may  be 
d,  those  in 


which  the  defendant  is  accused  of  frandulentlv  overdrawinjr 
his  own  acc(junt  at  the  bank,  and  Avhicli  may  be  termed  the 
•'  overdraft"  counts. 

1.  The  eighth,  one  of  the  "  surrender  and  delivery  "  counts, 
charges,  in  substance,  that  on  May  8,  ISjil,  Evans  did  know- 
ingly, wilfully,  unlawfully  and  fraudulently  aid  and  abet 
one  Harry  II.  Kennedy,  cashier  of  the  bank,  to  wilfully  mis- 
apply certain  moneys,  funds,  and  credits  belonging  to  the 
bank,  for  the  use,  benefit  and  advantage  of  the  said  Evans, 
with  intent  in  him,  the  said  Evans,  to  injure  and  defraud  the 
bank  ;  that  is  to  say,  that  the  said  cashier  did  knowingly,  un. 
lawfully,  fraudulently,  and  wilfully,  and  with  intent  to  in- 
jure and  defraud  the  bank,  misapjily  the  sum  of  ^7,500,  to  wit, 
a  promissory  note  (hited  Xovemlier  l<>,lfc*.tO,  made  and  dmwn  by 
A.  V).  Nettleton  for  this  amount,  due  March  13,  IblM,  which 
had  been  theretofore  discounted  by  the  bank,  Avas  then  over- 
due and  unpaid,  and  was  held  by  the  bank  as  and  for  funds 
and  credits,  as  aforesaid.  Whereupon,  the  said  cashier,  Avith 
intent  to  injure  and  defraud  the  bank,  did  wilfully,  know- 
ingly, and  fraudulently  misapply  the  same,  by  surrendering 
and  delivering  the  note  to  Evans  without  receiving  payment 
therefor  for  the  bank  ;  and  the  said  Evans  did  there,  know- 
ingly and  unlawfully,  aid  and  abet  the  said  cashier  in  such 
wilful  misapplication,  with  intent  in  him,  said  Evans,  to  in- 
jure and  defraud  the  bank. 

The  ninth  and  tenth  counts  did  not  differ  from  the  eighth, 
except  in  describing  other  notes  made  by  Nettleton,  of  differ- 
ent dates  and  amounts. 

The  same  objection  was  taken  to  all  of  them,  viz.,  that 
there  was  no  averment  that  the  defendant  did  not  receive  such 
notes  as  an  agent  for  collection,  or  to  secure  their  renewal, 
and  subsequently  failed  to  account  for  the  same  to  the  bank 
for  proceeds  or  renewals,  and  further,  that  there  was  no  aver- 
ment that  the  bank  did  not,  either  at  the  time  of  the  surrender, 
or  at  any  subsecpient  time,  receive  security,  value,  or  renewal 
notes  therefor,  and  no  averment  that  the  bank  had  been 
in  any  manner  a  loser  thereby. 

In  answer  to  the  first  objection— that  there  Avas  no  aver- 
uient  that  the  defendant  did  not  receive  the  notes  as  an  agent 
for  collection,  or  to  secure  their  renewal— it  is  sufficient  to  say 
that  the  count  charges:  defendant  with  Avilf ully  misappropriat- 


it ,      \l 


11 


w 


673 


AMERICAN   CRIMINAL  REPORTS. 


inff  the  money  find  credits  of  the  bank  for  his  own  use,  benefit 
and  advantage,  and  with  intent  to  defraud  the  bank,  and  tliat 
the  object  of  the  subsecjuent  language  of  the  count  is  rather  to 
identify  the  property  iTiisapi)lied,  than  to  charge  a  distinct 
offense,  although  tlie  alk^gation  of  a  wilful  misappro])riation 
with  intent  to  defraud  is  repeated.  The  count  charges,  as  in- 
gredients of  a  crime — First,  that  the  defendant  knowingly, 
wilfuU}-^,  unlawfully  and  fraudulently  aided  and  abetted  the 
cashier;  second,  in  wilfully  misappropriating  the  funds  and 
credits  of  the  bank;  third,  that  he  did  this  for  his  own  use 
and  benefit;  fourth,  with  intent  to  defraud  the  bank;  fifth, 
the  credit  misapplied  is  then  described  as  a  note  of  one  Nettle- 
ton,  which  was  then  overdue  and  unpaid;  sixth,  the  manner 
of  the  misapplication  is  then  set  forth  as  consisting  in  the  sur- 
render and  delivery  of  the  same  to  the  defendant,  without  re- 
ceiving any  ]mrt  of  the  sum  represented  by  the  note. 

Everv  element  of  the  offense  being  set  forth  in  the  earlier 
part  of  the  count,  there  was  no  necessity  of  repeating  it  when 
the  particular  credit  misa])plied  is  described,  nor  of  negativing 
every  possible  theory  consistent  with  an  innocent  delivery  of 
the  note  to  the  defendant.  This  requirement  would  have  the 
effect  of  limiting  the  government  to  allegations  it  might  be 
wholly  unable  to  prove,  and  ^v'ithout  subserving  any  useful 
pur]x)se  to  the  defendant. 

AVhile  the  rules  of  criminal  pleading  require  that  the  accused 
shall  be  fully  ai>prised  of  the  charge  made  against  him,  it 
should,  after  all,  be  borne  in  mind  that  the  object  of  criminal 
proceedings  is  to  convict  the  guilty,  as  well  as  to  shield  the 
innocent;  and  no  impracticable  standards  of  particularity 
should  bo  set  u]),  whereby  the  government  may  be  entrai)ped 
into  making  allegations  which  it  would  be  imjwssible  to  prove. 
The  note  might  have  been  delivered  to  the  defendant  for  a 
score  of  honest  purposes,  which  it  would  be  utterly  impossible 
to  anticipate.  Neither  in  criminal  nor  in  civil  pleading  is  it  re- 
quired to  anticipate  or  negative  a  defense.     "Where  there  is 


no  question  of  variance 


the  indictment  need  not, 


by  way  of  negative,  introduce  matter  of  defense  when  it  is 
drawn  on  a  statute,  anymore  than  when  it  is  at  common  law." 
1  Bish.  Cr.  Proc,  §  638.  "  In  general,"  says  Chitty,  "  all  mat- 
ters of  defense  must  come  from  the  defendant,  and  need  not' 
be  anticipated  or  stated  by  prosecutor."    1  Chit.  Cr.  Law,  231. 


e,  benefit 
iind  that 
rather  to 
distinct 
opriation 
Tes,  as  in- 
lowinj^ly, 
etted  the 
unds  and 
own  use 
ink;  fifth, 
ne  Nettle- 
manner 
in  the  sur- 
ithout  re- 

le  earlier 
ST  it  when 
ie,'Tjitiving 
el  i  very  of 
[\  have  the 
might  be 
any  useful 

he  accused 
ist  him,  it 
)f  criminal 

shield  the 
irticularity 

entrai>ped 
,e  to  prove, 
(hint  for  a 

impossible 
ling  is  it  re- 
ire  there  is 
t  need  not, 
when  it  is 
timon  law." 
\  "all  mat- 
id  need  not 
r.  Law,  231. 


EVANS  V.  UNITED  STATES. 


073 


See,  also,  U.  S.  v.  Cook,  17  Wall.  173.  The  general  words 
of  fraudulent  misapplication  to  the  use  and  benefit  of  the  de- 
fendant, and  of  an  intent  by  so  doing  to  defraud  the  bank, 
are  of  themselves  inconsistent  with  an  honest  purpose.  In- 
deed, the  word  "surrender"  carries  with  it  something  more 
than  a  bare  delivery,  and  indicates  a  transfer  of  title  as  well 
as  of  possession. 

It  was  equally  unnecessary  to  cLarge  that  the  bank  did  not, 
either  at  the  time  of  sui-rendering,  or  at  any  subsequent  time, 
receive  security,  value,  or  renewals  for  the  notes  surrendered, 
or  that  it  had  been  the  loser  by  such  surrender,  since  there  was 
an  allegation  that  the  surrender  was  made  without  receivins: 
therefor,  for  the  bank,  the  sum  represented  by  the  notes,  or 
any  part  thereof.  If  it  did  receive  such  value  thereafter,  it 
was  clearly  a  matter  of  defense.  The  misdemeanor  was  com- 
plete when  the  note  was  fraudulently  misapplied  to  the  use  of 
the  defendant,  with  intent  to  defraud  the  bank;  and,  if  the 
bank  subsequently  saved  itself  from  loss,  it  was  a  matter  to  be 
proven  by  the  accused,  if,  indeed,  it  were  any  defense  at  all. 
If,  at  the  time  of  the  surrender,  the  bank  receive^'  security, 
value,  or  renewals,  as  a  part  of  the  same  transaction,  this  would 
undoubtedly  be  a  defense;  but  if  the  accused  subsequently  re- 
pented, and  indemnified  the  bank,  or  the  latter  was  able  to 
protect  itself  from  loss,  it  is  very  doubtful  whether  this  would 
inure  to  the  benefit  of  the  defendant  or  purge  him  of  the 
charge.  2  Bish.  Cr.  Law,  §  796;  Jieg.  v.  Fhetheon,  9  Car.  &  P. 
552;  /iVf/.  V.  Peters,  1  Car.  &  K.  215;  State  v.  Scott,  C4  N.  C. 
58(5;  Whart.  Cr.  Law,  §  1797. 

2.  The  fourteenth  count,  which  may  be  treated  as  repre- 
sentative of  all  the  "unlawful  discount"  counts,  charged  in 
substance  that  Evans  knowingly,  wilfully,  unlawfully,  and 
fraudulently  aided  and  abetted  the  cashier  to  wilfully  mis- 
apply the  money,  funds  and  credits  of  the  bank  for  the  use, 
benefit  and  advantage  of  the  defendant,  with  the  intent  on 
defendant's  part  to  injure  and  defraud  the  bank,  in  that  the 
said  cashier  knowingly,  unlawfully,  fraudulently  and  wilfully, 
with  the  intent  to  defraud  the  bank,  and  for  the  use,  etc.,  of 
the  said  Evans,  misapplied  the  sum  of  §15,000,  by  receiving 
and  discounting,  with  the  money  and  lunds  of  the  bank,  a 
note  made  by  Evans  for  this  amount  (giving  copy),  which 
48 


674 


AMERICAN  CRIMINAL  REPORTS. 


^  ;.*  'i 


note,  when  so  discounted,  "  was  not  then  and  there  well  se- 
cured," as  the  cashier  and  Evans  both  well  knew,  and  which 
note  was  never  paid,  by  reason  of  which  the  bank  suffered  loss 
in  this  amount,  Avith  intent,  in  the  said  Evans  to  injure  and 
defraud  the  bank. 

While  the  mere  discount  of  an  unsecured  note,  even  if  the  maker 
and  the  officer  making  the  discount  knew  it  Avas  not  secured, 
would  not  necessarily  be  a  crime,  if  the  maker  believed  that  he 
would  be  able  to  provide  for  it  at  maturity,  yet  if  his  orignial  in- 
tent was  to  procure  the  note  to  be  discounted  in  order  to  defraud 
the  bank,  as  charged  in  this  count,  every  element  of  criminal- 
ity is  present.  The  case  is  not  unlike  that  of  purchasing  goods 
or  obtaining  credit.  If  a  person  buy  goods  on  credit,  in  good 
faith,  knowing  that  he  is  unable  to  ]my  for  them  at  the  time, 
but  believing  that  he  will  be  able  to  pay  for  them  at  the  ma- 
turity of  the  bill,  he  is  guilty  of  no  offense,  even  if  he  be  die- 
appointed  in  making  such  payment.  But  if  he  purchase  them 
knowing  that  he  will  not  be  able  to  pay  for  them,  and  with  an 
intent  to  cheat  the  vendor,  this  is  a  plain  fraud,  and  made  pun- 
ishable as  such,  by  statutes,  in  many  of  the  states.  In  this 
particular  of  an  intent  to  defraud,  the  case  is  distinguishable 
from  that  of  [/.  S.  v.  Britton,  108  U.  S.  193,  2  Sup.  Ct.  520,  in 
which  the  charge  was  that  the  defendant,  being  president  and 
director  of  the  association,  and  being  insolvent,  procured  his 
own  note  to  be  discounted,  the  same  not  being  well  secured,  the 
payee  and  the  indorser  thereof  being  also  insolvent,  which  he, 
defendant,  well  knew.  The  incriminating  facts  were  tiiat  the 
note  was  not  well  secured,  and  that  both  the  maker  and  indorser 
were,  to  the  knowledge  of  the  defendant,  insolvent  when  the 
note  was  discounted.  The  question  there  ])resented  was 
whether  the  procuring  of  the  discount  of  such  a  note  by  an 
officer  of  the  association  was  a  wilful  misapplication  of  its 
moneys,  within  the  meaning  of  the  law.  It  was  held  that  it 
was  not.  The  criminality  really  depends  upon  the  question 
whether  there  was  at  the  time  of  the  discount  a  deliberate 
purpose  on  the  part  of  the  defendant  to  defraud  the  bank  of 
the  amount. 

It  is  ol)jected,  however,  to  this  count,  that  there  was  no 
averment  that  the  cashier,  in  discounting  the  note,  acted  in 
excess  of  his  powers,  or  outside  of  his  regular  duties,  nor  was 
there  any  averment  that  the  cashier  was  not  the  duly  au- 


EVANS  V.  UNITED  STATES. 


OTo 


•e  well  sc- 
md  which 
[fered  loss 
njure  and 

the  maker 
it  secured, 

d  that  he 
n'ignial  in- 
to defraud 
'  criminal- 
sing  goods 
it,  in  good 

the  time, 
at  the  ma- 
'  he  be  dif- 
hase  them 
ndwith  an 
made  pun- 
(S.     In  this 
nguishable 
Ct.  526,  in 
3sident  and 
roc u red  his 
)ecured,  the 
;,  which  he, 
;re  that  the 
nd  indorscr 
it  when  the 
sen  ted   was 
note  by  an 
ition   of  its 
held  that  it 
ho  question 
a  deliberate 
he  bank  of 

jre  was  no 
te,  acted  in 
es,  nor  was 
le  dulv  au- 


thorized officer  of  the  bank  to  discount  paper,  nor  was  there  any 
averment  that  the  discount  was  procured  by  any  fraudulent 
means,  or  that  Evans  was,  at  the  time  of  such  discount,  insolv- 
ent, or  knew  himself  to  bo  so.  It  was  held  by  this  court 
in  Bank  of  U.  S.  v.  Dunn.  6  Pet.  51,  that  the  power  to 
discount  paper  was  not  one  of  the  implied  powers  of  the 
cashier,  and  this  is  lielieved  to  be  the  law  at  the  present  day. 
^[orse,  Banks,  §  1 17.  If  the  directors  of  this  bank  had 
a'lthorizcd  their  cashier,  either  generally  or  in  this  particular 
case,  to  <llscount  paper,  it  was  clearly  matter  of  defense.  I'ut 
even  if  he  did  possess  such  power,  and  wilfully  abused  it  by 
discounting  notes  which  he  knew  to  be  worthless,  and  did  this 
with  deliberate  intent  to  defraud  the  bank,  it  is  not  perceived 
that  his  criminality  is  any  less  than  it  would  have  been  if  he 
had  acted  beyond  the  scope  of  his  authority. 

No  averment  was  necessary  that  such  discount  was  pro- 
cured by  fraudulent  means,  since  the  offense  consists,  not  in 
the  use  of  fraudulent  means,  but  in  the  discount  of  a  note 
which  both  parties  knew  to  be  unsecured,  with  the  intent 
thereby  to  defraud  the  bank.  An  averment  that  Evans  Avas 
at  the  time  insolvent,  or  knew  himself  to  bo  so,  was  also  un- 
necessary, in  view  of  the  allegation  that  Evans  knew  that  the 
note  was  not  secured,  and  procured  the  same  to  be  discounted 
with  intent  to  defraud  the  bank.  The  argument  of  the  de- 
fendant, in  this  connection,  assumes  that  under  no  circum- 
stances is  the  discount  of  a  note,  which  all  parties  know  to  be 
worthless,  an  offense  under  the  statute,  even  though  such  dis- 
count be  made  for  the  deliljerate  purpose  of  defrauding  the 
bank  out  of  the  proceeds  of  the  note  so  discounted.  AVe  do 
not  see  how  it  is  possible  to  give  such  an  interpretation  to  the 
statute  without  a  practical  nullification  of  its  provisions. 

Defendant's  entire  criticism  upon  these  counts  seems  to  be 
founded  upon  tiie  hypothesis  that  no  weight  whatever  is  to 
be  given  the  words  "  knowingly,  wilfully,  unlawfully,  and 
fraudulently,"  or  to  the  general  allegation  of  an  intent  to  de- 
fraud— in  short,  that  these  words  are  mere  surplusage. 
Where,  however,  the  statute  uses  words  which  are  not  abso- 
lutely inconsistent  with  an  honest  purpose,  such  as  was  hehl 
by  this  court  in  Britton's  case  were  the  words  "  wilfully  mis- 
applied," the  allegation  of  an  intent  to  defraud  becomes  ma- 
terial, in  the  highest  degree.     In  fact,  the  gravamen  of  the 


676 


AMERICAN  CRIMINAL  REPORTS. 


mii 


&m 


\ 


offense  consists  in  the  evil  design  with  which  the  misapj)lica- 
tion  is  miule,  antl  a  count  which  shoukl  omit  the  words  "  wil- 
fully," etc.,  and  "  witli  intent  to  defraud,"  would  be  clearly 
bad.  While  it  is  entirely  true  that  an  allegation  of  fraud  is 
insufficient,  either  in  an  indictment  or  in  a  bill  in  equity,  with- 
out giving  the  particulars  of  the  fraud,  an  intent  to  defraud  is 
only  to  be  gathered  by  the  jury  from  all  the  facts  and  circum- 
stances of  the  case. 

There  is  no  greater  need  of  setting  out  the  evidence  to  prove 
o';ch  intent  than  there  would  be  of  averring  in  detail  the  evi- 
dtiice  of  a  scienter,  or  of  any  other  fact  material  to  the  offense. 
Wlior^^  the  intent  is  a  material  ingredient  of  the  crime,  it  is 
uecossary  to  be  averred;  but  it  may  always  be  averred  in  gen- 
eral terms,  as  in  a  case  of  assault  with  intent  to  kill.  So,  in  an 
indictment  for  murder,  it  is  necessary  to  aver  that  the  killing 
was  done  "  wilfully,  feloniously,  and  of  malice  aforethought;" 
but  the  evidence  that  it  was  so  done,  though  necessary  to  be 
g'ven,  is  not  necessary  to  be  set  forth.  This  subject,  however, 
was  so  fully  considered  by  this  court  in  IT.  S.  v.  Shammis,  96 
U.  S.  3G0,  that  it  is  needless  to  dwell  upon  it  more  at  length 
here.  In  that  case  the  indictment  averred  that  the  defendant 
''  did  knowingly  and  unlawfully  engage  in  and  carry  on  the  busi- 
ness of  a  distiller  *  *  *  with  intent  to  defraud  the  United 
States  of  the  tax  on  the  spirits  distilled  by  him."  It  was  held 
not  to  be  necessary  to  state  the  particular  means  by  Avhich  the 
United  States  was  to  be  defrauded  of  the  tax.  "  The  defend- 
ant," said  the  court,  "  is  entitled  to  a  formal  and  substantial 
statement  of  the  grounds  upon  which  he  is  questioned,  but  not 
to  such  strictness  in  averment  as  might  defeat  the  ends  of  jus- 
tice. The  intent  to  defraud  the  United  States  is  of  the  very 
essence  of  the  offense;  and  its  existence  in  connection  with  the 
business  of  distilling,  being  tlistinctly  charged,  must  be  estab- 
lished by  satisfactory  evidence.  Such  intent  may,  however, 
be  manifested  by  so  many  acts  upon  the  part  of  the  accused, 
covering  such  a  long  period  of  time,  as  to  render  it  difficult,  if 
not  wholly  impracticable,  to  aver,  with  any  degree  of  certainty, 
all  the  essential  facts  from  which  it  may  be  fairly  inferred." 
'•The  means  of  effecting  the  criminal  intent,"  says  Mr.  Whar- 
ton, or  the  circumstances  evincive  of  the  design  with  which 
the  act  was  done,  are  considered  to  be  matters  of  evidence  to 
go  to  the  jury  to  demonstrate  the  intent,  and  not  necessary  to 


isapi)lica- 
[•ds  "wil- 
>e  clearly 
fraud  is 
,ity,  with- 
defraud  is 
id  circum- 

e  to  prove 
lil  the  evi- 
lie  offense, 
rime,  it  is 
ed  in  gen- 
So,  in  an 
the  killing 
thought;" 
sary  to  be 
,  however, 
inmrms,  96 
>  at  length 
defendant 
Dnthebusi- 
the  United 
It  was  held 
which  the 
he  defend- 
substantial 
ed,  but  not 
mds  of  jus- 
Df  the  very 
m  with  the 
;t  be  estab- 
r,  however, 
he  accused, 
(lifHcnlt,  if 
f  certainty, 
'  inferred.'' 
Mr.  Whar- 
kvith  which 
ividonce  to 
lecessarv  to 


EVANS  V.  UNITED  STATES. 


077 


be  incorporated  in  an  indictment."  1  Wliart.  Cr.  Law.  ^  202. 
A  general  verdict  of  guilty  was  i*endered  upon  all  the  counts 
of  this  indictment  upon  which  a  nolle  jn'osequi  was  not  en- 
tered, and,  as  such  verdict  should  stand  if  any  one  of  the 
counts  is  good,  it  will  not  be  necessary  to  consider  them  in  any 
further  detail.  Claasscn  v.  U.  S.,  112  U.  S.  140. 
The  judgment  of  the  court  below  is  therefore  affirmed. 

Mb.  Justice  Field  dissenting. 

Mr.  Justice  Field  :  I  am  unable  to  concur  in  the  judgment 
of  the  court  in  these  cases,  or  in  the  opinion  upon  which  it  is 
founded.  The  two  cases  arise  out  of  the  same  state  of  facts, 
are  similar  in  essential  particulars,  and  were  argued  together. 

The  defendant  below.  Nelson  F.  Evans,  the  plaintiff  in  error 
here,  was  for  some  years  previous  to  May,  1891,  a  director 
of  the  Spring  Garden  National  Bank — a  national  banking 
association  doing  business  by  that  name  at  Philadelphia,  in  the 
state  of  Pennsylvania.  The  bank  failed  on  the  9th  of  JVIay, 
1S91,  and  passed  into  the  hands  of  a  receiver.  A  year  after- 
ward, in  May,  1892,  the  defendant  Evans  was  indicted  for 
various  acts  in  alleged  violation  of  section  5209  of  the  Revised 
Statutes  of  the  United  States,  which  is  as  follows: 

"  Sec.  5209.  Every  president,  director,  cashier,  teller,  clerk, 
or  agent  of  any  association  who  embezzles,  abstracts,  or  wil- 
fully misapplies  any  of  the  moneys,  funds,  or  credits  of  the 
association,  or  who,  without  authority  from  the  directors, 
issues  or  puts  in  circulation  any  of  the  notes  of  the  association, 
or  who,  without  such  authority,  issues  or  puts  forth  an}'  cer- 
tificate of  deposit,  draws  any  order  or  bill  of  exchange,  makes 
any  acceptance,  assigns  any  note,  bond,  draft,  bill  of  exchange, 
mortgage,  judgment,  or  decree,  or  who  makes  any  false  entry 
in  any  book,  report,  or  statement  of  the  association  with  intent, 
in  either  case,  to  injure  or  defraud  the  association,  or  any 
other  company,  body  politic  or  corporate,  or  any  individual 
person,  or  to  deceive  any  officer  of  the  association,  or  any 
ao-ent  appointed  to  examine  the  affairs  of  any  such  association, 
and  every  person  who,  with  like  intent,  aids  or  abets  any  officer, 
clerk,  or  agent  in  any  violation  of  this  section,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall  be  imprisoned  not  less  than 
live  years,  nor  more  than  ten." 


C78 


AMERICAN  CRIMINAL  REPORTS. 


'•f. 


H 


The  indictments  on<,finally  contained  several  liundred  counts, 
chai'^ing  over  150  different  offenses,  but  us  to  a  large  number 
of  the  counts  a  nolle  proacqnl  was  entered.  The  number  re- 
tained was  still  largo,  amounting  to  twenty-three  in  one  indict- 
ment, and  lifty-seven  ir>  ti^c  ot'>er.  To  them,  demurrers  were 
liledand  overruled.  The  defendant  was  then  arraigned,  and 
l)leaded  not  guilty ;  and,  uj)on  the  issues,  a  jury  was  called,  and 
trials  had,  which  resulted  in  conviction  in  both  cases.  A  motion 
for  a  new  trial  in  each  case  was  overruled.  Subse(]uently,  a 
motion  in  arrest  of  judgment,  upon  substantially  the  same 
grounds  as  those  urged  in  support  of  the  demurrers  prior  to  the 
pleas,  was  made.  This  moticm  was  also  overruled ;  and  the  de- 
fendant was  then  sentenced,  upon  the  conviction,  under  one  of 
the  indictments,  to  imprisonment  in  the  penitentiary  for  the 
term  of  five  years,  and,  upon  the  conviction  under  the  other 
indictment,  to  a  like  imprisonment  for  the  term  of  two  years 
following  the  exi)iration  of  the  previous  imi)risonment.  Tl.e 
cases  are  brought  to  this  court  upon  writs  of  error  to  review 
these  judgments. 

The  counsel  erf  the  defendant  has  given  the  court  much  as- 
sistance in  the  considerati<jn  of  the  cases,  by  the  careful  analy- 
sis he  has  made  of  the  different  counts.  These  are  so  numer- 
ous, presenting  in  many  of  them  the  same  charge  with  confusing 
variations,  as  to  obscure,  rather  than  to  render  clear,  the  real 
offenses  intended. 

In  the  indictment  in  case  No.  923,  the  offense  charged 
ajrainst  the  defendant  in  the  tiist  four  counts  is  set  forth  in 
the  most  general  way.  In  the  first  of  tlu^se  four,  the  de- 
fendant is  charged,  as  a  director,  Avith  wilfully  misapplying 
the  funds  and  credits  of  the  bank.  In  the  second,  he  is  charged 
with  conspiringVith  officers  of  the  bank  to  wilfully  misapply 
its  money  and  credits.  In  the  third,  he  is  charged  with  aiding 
and  abetting  the  president  of  the  bank  to  raisa|)ply  its  moneys, 
funds,  and  credits.  In  the  fourth  count,  he  is  charged  with 
aidiny;  and  abetting  the  cashier  of  the  bank  in  a  similar 
misapplication.  A  demurrer  was  interposed  to  each  of  these 
four  general  counts  on  the  ground  that  it  did  not  specify  the 
means  whereby  the  alleged  misapplication  was  made,  and  show 
that  they  were  unlawful. 

The  remaining  counts  of  the  indictment  are  more  specific, 
some  of  them  charging  the  defendant,  ns  a  director,  with  mis- 


EVANS  V.  UNITED  STATES. 


C70 


■0(1  counts, 
;;o  number 
umber  re- 
one  indict- 
rrers  were 
gned,  and 
Jtdled,  and 
A  motion 
juently,  a 
the  same 
irior  to  tlje 
nd  the  de- 
ider  one  of 
,ry  for  tlie 
•  the  other 
two  years 
lent.     The 
to  review 

t  much  as- 
•ef  ul  analy- 
3  so  numer- 
1  confusing 
tir,  the  real 

56  charged 
set  forth  in 
)ur,  the  de- 
)isai)plying 
3  is  charged 
y  misapply 
tvith  aiding 
its  moneys, 
irged  with 
1  a  similar 
3h  of  these 
specify  the 
3,  and  show 

re  sjiecific, 
',  with  mis- 


applying moneys,  funds,  and  credits  by  depositing  checks  and 
obtaining  fictitious  credits  thereon;  others  charging  him  with 
aiding  and  abetting  the  ])resident  in  misai)i)lying"funds  and 
credits  in  tlie  same  manrer;  others,  with  aiding  and  abetting 
the  cashier  in  a  like  misai)plication  of  the  funds;  others,  with 
aiding  and  abetting  the  president  in  misa]iplying  funds  by  sur- 
rendering notes;  otiiers,  with  aiding  and  abetting  the  i)resident 
in  misap[)lying  the  funds  by  discounting  unsecured  notes  of 
tlie  defendant;  others,  with  misapplying  the  funds  tlirough 
overdrafts;  others,  with  aiding  and  abetting  the  president, 
to  misai)ply  the  funds  through  overdrafts. 

In  tile  indictment  in  the  case  No.  922,  the  defendant  in 
some  of  the  counts  is  charged  with  aiding  and  abetting  the 
cashier  in  misapplying  the  funds  of  the  bank  by  surrendering 
to  the  defendant  unpaid  notes,  which  the  bank  had  discounted, 
and  still  held,  without  receiving  for  them  the  amount  thereof, 
or  any  part  of  it;  in  some,  also,  with  aiding  and  abetting  the 
cashier  to  misapply  the  funds  by  discounting  unsecured  notes; 
in  some,  also,  with  aiding  and  abetting  the  cashier  to  misapply 
the  funds  through  overdrafts. 

For  the  disposition  of  these  cases,  it  is  not  necessary  to  pass 
upon  each  count  separately.  In  the  first  instr.nce,  the  general 
counts  will  be  considered,  and  then  an  examination  made 
as  to  the  sufficiency  of  the  specific  counts  upon  which  the 
government  chiefly  relies  to  sustain  the  prosecution.  If  thev 
will  not  bear  the  scrutiny  given  to  them,  none  will.  The 
groun<ls  of  the  demurrer  to  them  will  be  designated  when 
the  counts  are  separately  considered. 

With  reference  to  indictments  for  statutory  otfenses,  there 
are  certain  rules  which  govern  their  construction.  It  is  usu- 
ally sulKcient,  in  such  cases,  to  set  forth  the  offense  in  the 
language  of  the  statute,  if  it  be  accompanied  by  a  statement 
of  such  facts  and  circumstances  as  will  inform  the  accused  of 
the  specific  offense,  coming  under  the  general  description  of 
the  statute,  with  which  he  is  charged.  He  must  be  apprised 
by  the  indictment,  with  reasonable  certainty,  of  the  nature  of 
the  accusation  against  him,  in  order  that  he  may  be  able  to 
prepare  for  his  defense,  and  also,  in  case  of  conviction  or  ac- 
quittal, that  he  may  plead  the  judgment  in  bar  of  further 
proceedings.  U.  S.  v.  Simmonds,  96  U.  S.  360;  U.  S.  v.  Ilesa, 
124  U.  S.  4S3. 


^^' 


U'. 


■i    V 


C80 


AMERICAN  CRIMINAL  REPORTS. 


4 


A  mere  stjitemont  of  the  offense  in  the  words  of  tlio  statute, 
without  a  statement  of  the  accompanying  facts  and  circum- 
stances essential  to  constitute  a  si)eciHo  offense,  will  be  insuf- 
ticient.  As  said  by  this  court  in  17.  iS.  v.  Carll,  1U5  U.  S.  Oil, 
speaking  through  Mr.  Justice  Gray:  "In  an  indictment 
upon  a  statute,  it  is  not  sufficient  to  set  forth  the  offense  in 
the  words  of  the  statute,  unless  those  words,  of  themselves, 
fully,  directly,  and  expressly,  without  any  uncertainty  or  am- 
biguity, set  forth  all  the  elements  necessary  to  constitute  the 
offense  intended  to  be  punished;  and  tlie  fact  that  the  statute 
in  question,  read  in  the  light  of  the  common  law,  and  of  other 
statutes  on  the  like  matter,  enables  the  court  to  infer 
the  intent  of  the  legislature,  does  not  dispense  with  the 
necessity  of  alleging  in  the  indictment  all  the  facts  necessary 
to  bring  the  case  within  that  intent."  Numerous  autliorities 
were  cited  in  sui)port  of  the  views  expressed. 

There  is  a  very  general  test  applicable  to  all  indictments. 
If  the  facts  alleged  be  establisiied,  or  admitted  to  be  true,  and 
their  truth  is  consistent  with  the  defendant's  innocence,  the 
indictment  is  sufficient,  hoAvever  full  the  descrij)tion  in  other 
respects.  Applying  this  well-settled  doctrine  to  the  lifferent 
counts  of  the  indictments  in  these  cases,  there  will  be  little 
difficulty  in  determining  as  to  their  sufficiency;  yet  the  doc- 
trine appears  to  be  entirely  ignored  by  the  majority  of  the 
court,  or  at  least  set  aside  in  these  cases. 

The  four  general  counts  are  manifestly  insufficient,  as  they 
wholly  fail  to  aver  the  means  by  Avhich  the  alleged  misappli- 
cation of  the  funds  was  made  by  the  defendant,  or  attempted 
by  him,  in  conspiracy  with  the  president  or  cashier,  or  in  aid- 
ing and  abetting  them. 

Upon  an  allegation  that  one  has  misi])plied  the  funds  of 
a  bank,  the  natural  inquiry  would  be,  how  ?  in  what  manner? 
Until  the  manner  in  which  the  application  was  made,  and  the 
purpose  of  it,  are  shown,  no  misapplication  can  be  established. 
There  is  no  averment  of  facts  in  either  of  the  counts  of  the 
indictment  to  show  that  the  application  of  the  funds  was  an 
unlawful  one;  and  unless  it  appear  from  the  facts  alleged  that 
such  was  the  case,  the  application  will  not  constitute  the 
offense  charged.  Nor  is  there  any  averment  of  facts  to  show 
that  the  bank  suffered  any  loss  or  damage  by  the  misapplica- 
tion.   From  all  that  is  alleged,  it  may  have  been  the  exercise 


vA 


.  * 

-  1 


EVANS  V.  UNITED  STATES. 


6S1 


0  statute, 

1  ciicum- 
bo  insuf- 

U.  S.  611, 
ulictment 
uireiise  in 
lemselves, 
ity  or  am- 
ititute  the 

10  statute 
il  of  other 

to  inter 
witli  the 
necessary 
LUthorities 

tlictnients. 
i  true,  and 
cence,  the 
n  in  other 
e  lifferent 

11  be  little 
jt  the  (loc- 
I'ity  of  the 

nt,  as  they 
[  inisappli- 
attenipted 
',  or  in  aid- 

le  funds  of 
it  manner  I 
le,  and  the 
'stablished. 
mts  of  the 
nds  was  an 
lleged  that 
stitute  the 
jts  to  show 
inisapplica- 
he  exercise 


of  an  unwise  ju(l<,'nient,  for  which  the  defendant  could  not  bo 
c!iar<^-ed  under  the  statute,  and  injury  from  which  may  have 
been  avoided  by  a  subsecjuent  replacement  of  the  moneys. 

In  U.  S.  V.  B/'ltton,  m  U.  S.  055,  Cm,  2  Sup.  Ct.  512,  the 
words  "  wilfully  misapplied,"  used  in  the  secti«m  upon  which 
the  present  indictments  were  found,  were  considered,  and  the 
court,  speaking  by  Mr.  Justice  Wood,  said;  "The  words  'wil- 
fully misai)plied'  are,  so  far  wo  know,  new  in  statutes  creat- 
ing offenses,  and  they  are  not  used  in  describing  any  olfenso  at 
common  law.  They  have  no  settled  technical  meaning,  like  tho 
word  '  embezzle,'  as  used  in  the  statutes,  or  the  words  '  steal, 
take,  and  carry  away,'  as  used  at  common  law.  They  do  not, 
therefore,  of  themselves,  fully  and  clearly  set  forth  every 
element  of  the  offense  charged.  It  would  not  be  sulHcient 
simply  to  aver  that  the  defendant  wilfully  'misapplied'  the 
funds  of  the  association.  This  is  well  settled  by  the  authori- 
ties we  have  already  cited.  There  must  be  averments  to  show 
how  the  application  was  made,  and  that  it  was  an  unlawful 
one."  It  follows  that  the  demurrer  to  each  of  the  four  ffen- 
oral  counts  was  well  taken,  and  should  have  been  sustained. 

The  two  cases,  as  stated  in  the  opinion  of  the  court,  were 
originally  arguetl  here  upon  the  sufficiency  of  all  the  counts. 
A  re-argunient  having  been  ordered,  it  was  confined  principally 
to  the  Stli,  9th,  10th  and  llth  counts;  and  in  the  opinion  a 
copy  of  the  8th  count  is  given  at  length,  as  a  rei^resentative 
one  of  its  class,  and,  as  in  framework  and  structure,  similar  to 
all  the  counts  to  which  the  attention  of  the  court  was  called. 

This  count,  stripped  of  its  useless  verbiage,  and  of  its  adjec- 
tives im])uting  supposed  fraudulent  motives  to  the  conduct  of 
the  defendant,  and  of  adverbs  of  objurgation,  is  sul)stantially 
this,  and  no  more:  That  the  defendant,  Evans,  did,  on  the  8th 
of  May,  1891,  in  tho  district  named,  aid  and  abet  the  cashier 
of  the  bank  to  misapply  an  unpaid  note  of  one  Xettleton  for 
S3venty-tive  hundred  (7500)  dollars,  formerly  discounted,  and 
still  held,  by  the  bank,  by  surrendering  and  delivering  it  to 
the  defendant  without  receiving  its  amount  or  any  part  thereof, 
and  that  it  was  done  by  the  defendant  to  injure  and  defraud  the 
bank.  The  allegation  of  the  motive  of  such  surrender  and  de- 
livery adds  nothing  to  the  character  of  the  act,  unless  its  object 
is  shown  by  stating  the  use  to  which  the  note  was  to  be  put, 
as  that  it  was  for  cancellation  or  appropriation  for  the  benefit 


082 


AMERICAN  CRIMINAL  REPORTS. 


¥     U* 


m 


of  the  (lefcndiint,  or  of  some  one  other  than  the  hi  r  to 

jiccoiiiplish  some  object  other  than  to  obtain  its  i){i\,...at,  re- 
newal, or  security.  Nor  does  the  count  aver  that  a  valid  con- 
sidenitioii  was  not  received  for  the  note,  or  that  the  l)ank  lost 
l)y  the  transaction.  The  more  charge  of  an  inti'ntion  lo  mis- 
apply the  uni)aid  note  is  not  sutlicient,  without  sc^me  allegation 
of  the  manner  in  which  such  misapplication  was  made.  This 
was  held  in  CI.  S.  v.  Jlntton,  107  U.  S.  055,  2  Sup.  Ct.  512.  It 
was  there  said  that,  to  constitute  the  offense  of  wilful  misa])- 
)ilication,  there  must  bo  a  conversion  to  the  use  of  theolFender, 
or  of  some  one  else,  of  the  moneys  and  funds  of  the  associa- 
tion, by  the  party  charged.  It  would  not  be  sulHcient,  i\w 
court  iidtloil.  simi)ly  to  aver  that  the  defendant  wilfully  mis- 
applied tin;  funds  of  the  association.  "There  must  be  aver- 
ments to  show  how  the  misapplication  was  made,  s  hat  it 
was  an  unlawful  one." 

It  is  an  old  doctrine,  not  to  bo  forgotten  in  practice  or  in 
pleading,  that  an  act  lawful  in  itself  can  not  be  made  criminal 
by  imputing  wrong  motives  to  the  conduct  of  the  party, 
runishment  is  not,  in  our  days,  inflicted  for  the  motives  for 
which  lawful  acts  are  done.  There  is  no  force  added  to  the 
allegation  of  "delivered"  by  the  use  of  the  word  "surren- 
dered," in  this  case,  but  rather  its  force  is  weakened.  A 
surrender  is  usually  made  upon  some  right  or  claim,  or  upon 
coercion.  The  latter  is  not  suggested  here,  and  surrender  is 
consistent  with  some  useful  purpose  in  the  enforcement  of  a 
claim  or  I'ight  to  the  note. 

Similar  observations  may  be  made  of  almost  every  count  in 
both  indictments.  There  is  some  fact  which  might  be  stated 
in  connection  with  their  allegations,  and  which  would  obvi- 
ate their  criminality,  but  which  is  omitted;  and  the  omission, 
in  mv  judgment,  makes  the  indictments  invalid. 

I  do  not  claim  that  it  is  essential  that  the  pleader  should 
negative  every  conceivable  lawful  delivery,  sucli  as  would  be 
unusua'  though  possible  under  some  circumstances;  but  I  do 
insist  that  a  lawful  delivery  should  be  met  by  a  negative  to  the 
natural  and  ordinary  conduct  which  would  be  adopted  by  inno- 
cent parties  in  such  cases.  A  note  discounted  at  a  bank,  when 
not  paid  in  whole  or  in  ])art,  is  not  usually  surrendered  to  a 
third  party  without  a  valuable  consideration,  unless  it  be  for 
collection,  or  to  obtain  its  renewal,  or  security  for  it;  and  such 


""'I»m^ 


EVANS  V.  UNITED  STATES. 


(!>;? 


r  to 
-.it,  re- 
valid  con- 
bank  lost 
)n  to  niis- 
il  legation 
do.  This 
,.  512.  It 
'ul  misap- 
}  olFomlor, 
le  associa- 
cient,  tho 
IfuUy  mis- 
it  ')o  aver- 
hat  it 

tice  or  in 
e  criminal 
he  party, 
lotives  for 
(led  to  tho 
1  "  surren- 
<ene(l.  A 
1,  or  upon 
irrender  is 
jiuent  of  a 

'y  count  in 
t  be  stated 
ould  obvi- 
3  omission, 

der  should 
I  would  be 
s;  but  I  do 
itivetothe 
3d  by  inno- 
)ank,  when 
ulcred  to  a 
ss  it  be  for 
,\  and  such 


usual  action  should  bo  negatived  by  averment.  No  doctrine 
is  more  essential  for  the  protection  of  a  party  accused  oi  a 
criminal  otfense,  and  none  should  he  more  rigidly  enl'orced, 
than  this,  that  the  facts  alleged  by  way  of  accusation,  if 
admitted  to  be  true,  must  bo  inconsistent  with  the  inference  of 
his  innocence  of  the  offense  charged,  arising  from  tho  usual 
conduct  of  innocent  parties  in  such  cases. 

I  do  not  assent  to  tho  doctrine  that  tho  note  might  have 
l)een  delivered  to  tho  defendant  for  a  score  of  honest  |)urp()ses, 
which  It  would  bo  unnecessary  to  negative,  and  that,  in  crimi- 
nal pleading,  it  is  not  reciuired  to  anticijjato  and  negative  a 
luitural  and  obvious  answer  to  the  accusation.  Such  is  nut 
the  law,  as  1  understand  it. 

The  counts  which  are  more  si)ecific  in  their  allegations,  and 
upon  the  sufHciency  of  which  the  ])rosecution  chiefly  relies, 
will  now  be  considered.  Those  sjjecific  counts  are  grouped  by 
tho  ]irosecution  into  four  sets.  Tho  first  sotconsists  of  counts 
5,  10  and  11  of  tho  indielnieiit  in  case  923.  These  counts  are, 
substantially,  that  the  defendant,  on  the  8th  of  May,  lbUl,did 
knowingly,  unlawfully,  fraudulently,  and  wilfully,  and  with 
intent  to  injure  and  defraud  the  bank,  misap})ly  certain  of  its 
moneys,  funds  and  credits  for  his  own  use  and  benefit,  to  wit, 
the  sum  of  ^15,333.35,  in  the  manner  and  by  tho  means  fol- 
lowing; that  is  to  say,  the  defendant,  being  a  director,  did  de- 
pt)sit  and  i)laco  to  his  credit  in  tho  bank  his  check,  drawn  by 
himself  on  tho  Keystone  bank,  in  favor  of  the  Spring  Garden 
bank,  tho  amount  being  in  excess  of  all  the  sums  which  he 
was  then  entitled  to  draw  from  the  moneys  and  funds  of  the 
Keystone  bank,  and  by  means  of  which  checik,  thus  deposited, 
he  obtained  a  false  credit  upon  the  books  of  tl^e  Spring  Garden 
bank,  and  was  thereby  enabled,  and  did  thereafter,  draw  out 
from  that  bank  the  sum  mentioned,  for  his  own  use,  benefit, 
and  advantage,  as  he  then  well  knew,  contrary  to  the  act  of 


congress. 


The  three  counts  differ  from  each  other  in  this,  that  the 
tenth  count  charges  the  defendant  with  knowingly  and  fraudu- 
lently aiding  and  abetting  the  president  of  the  bank  to  misap- 
ply' its  moneys,  funds,  and  credits,  in  the  amount  mentioned, 
by  receiving  on  deposit,  and  crediting  to  himself,  the  chock 
mentioned.  The  eleventh  count  differs  only  in  alleging  that 
the  defendant  aided  and  abetted  the  cashier  of  the  bank  in 


m 


■  i 


'4 
■4 


CS4 


AMERICAN  CRIMINAL  REPORTS. 


%: 


misapplying  its  moneys  and  credits  in  the  manner  mentioned. 
The  ciiarge  is  substantially  the  same  i  n  all  three  counts — that 
a  false  credit  was  secured  by  the  defendant  with  the  bank  b\' 
depositing  a  check  drawn  by  him  on  the  Keystone  bank  in 
excess  of  what  he  knew  to  be  his  balance  there,  nnd  which 
check  was  not  paid.  These  counts  are  subject  to  the  general 
objection  that,  admitting  all  their  statements  to  be  correct, 
they  are  still  consistent  with  the  innocence  of  the  defendant. 
The  counts  nowhere  allege  that  the  check  on  the  Keystone 
bank  was  ever  presented  to  that  bank  for  payment.  The  de- 
fendant may  have  overdrawn  his  account  in  that  bank.  The 
check  may  have  been  in  excess  of  all  sums  which  he  was  en- 
titled to  draw,  and  yet  it  might  have  been  paid  upon  presen- 
tation. 

There  is  not,  in  the  mere  fact  that  one  overdraws  his  account 
at  a  bank,  necessarily  any  evidence  that  the  drawer  intended 
to  defraud  the  bank,  or  any  other  bank  with  which  the  check 
was  deposited.  It  is  a  matter  of  every  day  practice  for  dojios- 
itors  in  a  bank  to  overdraw  their  accounts.  Whether  checks 
so  overdrawn  will  be  paid  may  depend  upon  other  considera- 
tions than  the  amount  of  deposits  of  the  drawer  in  the  bank. 
It  would  be  an  extraordinary  position  to  hold  that,  because  a 
man  drew  ujion  a  bank  for  more  than  he  knew  he  had  on  de- 
posit, he  should  be  charged  by  the  holder  with  the  commission 
of  a  fraud,  before  the  latter  had  presented  the  check  to  tiie 
bank  for  payment,  and  i)ayment  had  been  refused.  Whether 
or  not  the  Keystone  Bank  would  have  paid  it,  had  it  been  thus 
presented,  may  have  depended  upon  the  confidence  which  the 
bank  might  have  entertained  in  the  drawer's  ultimate  ability 
to  pay.  Thougii  not  entitled,  in  the  words  of  the  indictment, 
to  draw  at  the  time  any  sums  whatever,  yet  he  may  have  had 
such  credit  with  the  bank,  from  its  knowledge  of  his  character 
and  habits,  as  to  induce  it  to  honor  his  check.  It  is  within 
the  experience  of  every  one  that  checks  thus  drawn  are  often 
honored,  even  with  a  knowledge  of  the  drawer's  inadequate 
deposit.  Other  facts  beside  such  knowledge  by  the  drawer 
must  be  shown,  to  justify  the  imputation  of  criminal  intent  to 
him.  A  demurrer  was  interposed  to  the  counts  mentioned  on 
the  ground  that  they  did  not  aver  that  the  checks  in  qnostion 
were  presented  to  the  Keystone  Bank  for  payment,  and  that 
payment  was  refused,  and  that  the  bank  thereby  Uccame  a 


EVANS  r.  UNITED  STATES. 


685 


intionod. 
ts — that 
bank  by 

bank  in 
d  which 
s  general 
I  correct, 
ifendant. 
vevstone 

The  de- 
ik.  The 
3  was  en- 
n  presen- 

3  account 
intended 
;he  check 
'or  depos- 
3r  checks 
;<jnsidera- 
:he  bank, 
because  a 
id  on  de- 
mniission 
ck  to  liie 
Whether 
been  thus 
vhich  the 
,te  ability 
idictnient, 
have  had 
character 
is  within 
are  often 
nadecjuate 
le  drawer 
I  intent  to 
itioned  on 
n  question 
,  and  that 
became  u 


loser.  In  my  opinion,  the  counts  were,  for  that  reason  insuffi- 
cient, and  the  demurrer  was  well  taken,  and  should  have  been 
sustained. 

The  second  set  of  counts  upon  which  the  prosecution  relies 
are  Xos.  0,  7,  S,  9,  12  and  13  of  the  same  indictment.  These 
also  alleije  that  the  defendant,  being  a  director  of  the  Spring 
Garden  JJank,  caused  certain  checks  drawn  by  him  upon  the 
Keystone  Bank  and  the  Fourth  Street  National  Bank  of  Phil- 
adelpliia  for  sums  greater  than  he  was  entitled  to  uraw  or  ob- 
tain from  them,  to  be  deposited  with  the  Sjiring  Garden  Bank, 
and  phiced  to  his  credit  on  its  books,  and  thereby  obtained  a 
false  credit,  and  received  from  that  bank,  for  his  own  use  and 
benefit,  the  amount  of  such  checks.  But  these  counts  also 
show  that  each  of  such  checks  was  indorsed  in  this  way:  "  For 
deposit  to  the  credit  of  Nelson  F.  Evar.s.  Received  payment 
through  the  clearing  house."  The  purport  of  this  indorsement 
is  that  the  checks  were  passed  by  the  bank  through  the  clear- 
ing house,  and  paid  there — a  not  unusual  way  of  collecting 
checks  in  our  large  cities.  The  same  objections  that  were 
made  to  counts  5, 10,  au.l  11  can  be  made  to  these  counts,  and 
also  the  further  objection  that  there  is  an  inconsistency  in  the 
allegation  that  thereby  any  false  credit  was  obtained,  the 
checks  having  indorsed  on  their  face  the  statement  that  pay- 
ment was  received  on  them  through  the  clearing  house. 

These  checks  are  set  forth  in  the  indictment  with  this  in- 
dorsement, and  there  is  no  allegation  that  the  irdorsement 
was  false,  or  was  made,  or  permitted  to  be  made,  by  the  de- 
fendant, with  any  intent  to  defraud  the  bank.  The  very  face, 
therefore,  of  the  checks,  negatives  the  charge  of  crime,  and 
contradicts  the  idea  of  loss  to  the  bank.  If,  in  answer  to  this 
view,  it  be  said  that  it  is  alleged  that  the  checks  were  not 
paid,  it  must  be  observed  that  no  averment  is  made  of  their 
presentation  for  payment,  or  of  anything  to  exclude  the  idea 
of  negligence  on  the  ])art  of  the  bank  receiving  them,  or  that 
the  money  was  not  lost  through  the  failure  of  the  bank  upon 
which  they  were  drawn.  The  six  counts  differ  from  each  other 
in  this :  That  in  some  of  them  the  checks  are  alleged  to  have 
been  drawn  on  the  Keystone  Bank,  and  in  others  on  the  Fourth 
Street  National  Bank,  and  in  some  of  the  counts  the  misappli- 
cation is  charged  directly  upon  the  defendant,  and  in  others 
by  his  aiding  and  abetting  the  president  or  the  cashier.    On 


6S6 


AMERICAN  CRIMINAL  REPORTS. 


f,r 


the  several  grounds  stated,  a  demurrer  was  interposed  to  tliese 
counts,  and  in  my  judgment  it  was  well  taken,  and  sliould 
have  been  sustained. 

The  third  set  of  counts  upon  which  the  prosecution  relies 
are  No,  14  in  the  indictment  in  Case  922,  and  No.  20  in  the 
indictment  in  Case  923.  These  counts  charge  the  defendant 
with  aiding  and  abetting  the  president  and  cashier  of  the  bank 
in  fraudulently  misapj)lying  its  funds  for  the  use  and  benefit 
of  the  defendant,  by  receiving  and  discounting  his  note  for 
.$15,000,  payable  in  three  months,  knowing  that  that  note  was 
not  secured,  and  it  was  not  jmid  at  maturity,  or  at  any  other 
time.  But  these  counts  are  defective  in  not  alleging  that  the 
discounting  of  the  note  was  in  excess  of  the  power  of  the  pres- 
ident or  cashier,  or  outside  of  their  regular  duties,  or  that  the 
president  or  cashier  was  not  the  authorized  officer  of  the  bank 
to  discount  paper.  Nor  is  it  averred  that  the  discount  Avas 
procured  by  any  fraudulent  means,  or  even  that  the  defendant 
was  at  the  time  insolvent,  or  knew  himself  to  be  so.  On  these 
grounds  a  demurrer  was  interposed,  and  in  ray  judgment 
should  have  been  sustained. 

The  only  remaining  counts  upon  which  the  prosecution  re- 
lies are  Nos.  14,  15  and  10  of  the  indictment  in  Case  023,  and 
Nos.  8,  9,  and  10  of  the  indictment  in  Case  922.  Those  counts 
charge,  in  substance,  that  the  defendant  aided  and  abetted  the 
l)resident  or  the  cashier  of  the  bank  to  fraudulently  misapply 
a  large  amount  of  its  funds  by  surrendering  to  him,  for  his 
use  and  benefit,  certain  notes  of  one  Nettleton,  discounted  by 
the  bank,  and  held  as  part  of  its  assets,  without  receiving  for 
the  bank  the  amount  thereof,  or  any  part  thereof,  and  that 
such  surrender  was  fraudulently  made  to  injure  the  l)ank. 
The  counts  in  the  indictment  in  Case  923  charge  that  tlie  de- 
fendant aided  and  abetted  the  president  of  the  Ijank  in  the 
fraudulent  misapplication.  The  counts  in  the  other  indict 
ment  charge  that  the  defendant  aided  and  abetted  the  cashier 
in  such  misapplication  of  the  funds.  The  counts  do  not  show, 
in  either  case,  any  application  of  the  surrendered  notes  to  the 
use  and  benefit  of  the  defendant,  as  charged,  nor  do  they  con- 
tain any  averment  that  the  defendant  did  not  receive  tlie  notes 
as  agent,  for  collection,  or  to  obtain  their  renewal,  which 
would  readily  suggest  themselves  as  an  answer  to  the  alleged 
unlawful  surrender,  or  that  the  bank  was  in  any  way  a  loser 


EVANS  V.  UNITED  STATES. 


687 


to  tliese 
I  should 

on  relies 

20  in  the 

efendant 

the  bank 

d  benefit 

note  for 

note  was 

,ny  other 

that  the 

the  pres- 

that  the 

the  bank 

ount  was 

lefendant 

On  these 

judgment 

cut  ion  re- 
!  023,  and 
>so  counts 
hettcd  the 

misapply 
in,  for  his 
)unted  by 
eivinjj  for 
,  and  that 
the  bank, 
it  the  de- 
mk  in  the 
»er  indict 
he  cashier 

not  show, 
)tes  to  the 
►  they  con- 
i  the  notes 
'al,  which 
lie  alleged 
ay  a  loser 


thereby.  The  defect  in  these  counts  is  substantially  the  same 
pointed  out  in  considering  the  eighth  count  of  No.  022,  a  copy 
of  which  is  set  forth  in  the  opinion  of  the  court. 

The  allegations  of  fraudulent  conduct  and  motive  in  the 
transactions  for  which  the  indictments  were  found  are  re- 
peated with  wearisome  frequency,  yet  they  are  of  no  avail,  un- 
less accompanied  by  a  statement  of  facts  from  Avhich  such 
fraud  must  necessarily  be  inferred.  A  party  is  not  to  be  con- 
demned by  the  multitude  or  opprobriousness  of  the  adjectives 
applied  to  his  conduct  or  motives,  unsupported  by  the  facts; 
or,  as  said  by  Lord  Chief  Justice  Holt,  "  a  fact  that  appears  to 
be  innocent  can  not  be  made  a  crime  by  adverbs  of  a^-orava- 
tion."  Fraud  is  a  conclusion  of  law  from  facts  resi)ecting  the 
transactions  designated,  and  if  they  do  not  necessarily  tend 
to  such  conclusion  the  allegation  falls  to  the  ground,  however 
often  repeated,  or  with  whatever  amount  of  earnest  assevera- 
tion. 

Similar  views  are  announced  with  great  clearness  and  force 
in  (7.  S.  V.  Watkiiis  (decided  by  the  circuit  court  for  this  dis- 
trict over  sixty  years  ago),  3  Cranch.  C.  C.  443,  Fed.  Cas.  Ko. 
16,640.  The  defendant,  who  was  the  fourth  auditor  of  the 
treasury  of  the  United  States,  was  indicted  for  devising  and 
intending  fraudulently  to  obtain  for  his  private  use  moneys  of 
the  United  States,  by  means  of  letters  to  and  drafts  on  the 
navy  agent  at  New  York  and  the  navy  agent  at  Boston,  and 
certain  requisitions  on  the  treasury  of  the  United  States,  also 
sent  by  him  to  them;  said  letters,  drafts,  and  requisitions  be- 
ing used  as  false  pretenses  to  enable  him  to  obtain  the  mon- 
eys. There  were  three  indictments  found  against  him,  and 
objections  were  taken  to  the  sufficiency  of  their  allegations  of 
fraud.  In  considering  the  objections  the  court  said:  '*  Fraud 
is  an  inference  of  law  from  certain  facts.  A  fraud,  therefore, 
is  not  sufficiently  set  forth  in  an  indictment,  unless  all  the 
facts  are  averred  which  in  law  constitute  the  fraud.  Whether 
an  act  be  done  fraudulently  or  not  is  a  question  of  law,  so  far 
as  the  moral  character  of  the  act  is  involved.  To  aver  that 
the  act  is  fraudulently  done  is,  therefore,  so  far  as  the  guilt  or 
the  innocence  of  the  act  is  concerned,  to  aver  a  matter  of  law, 
and  not  a  matter  of  fact.  An  averment  that  the  act  was  done 
with  intent  to  commit  a  fraud  is  equivalent  to  an  averment 
that  the  act  was  done  fraudulently.    No  epithets,  no  averment 


G83 


AMERICAN  CRIMINAL  REPORTS. 


i 


ill- 


of  friuululent  intent,  can  supply  the  place  of  an  averment  of 
the  fact  or  facts  from  which  the  legal  inference  of  fraud  is  to 
be  drawn.  Starkie,  in  his  late  treatise  on  Criminal  Pleadings, 
says :  '  Whether  particular  circumstances  constitute  an  indict- 
able fraud  is  a  question  of  law;  and  therefore,  according  to  a 
fundamental  rule  of  description  in  indictments,  such  circum- 
stances must  be  set  out,  in  order  to  show  that  the  facts  amount 
to  an  intlictable  offense.'  And  he  quotes  Archbold  on  Crim- 
inal Pleadings,  as  follows:  'An  indictment  for  an  offense 
against  the  statute  must,  ■with  certainty  and  precision,  charge 
the  defendant  to  have  committed  acts  under  the  circumstances, 
and  with  the  intent,  mentioned  in  the  statute;  and  if  any  one 
of  these  ingredients  in  the  olfense  be  omitted  the  defendant 
may  demur,  move  in  arrest  of  judgment,  or  bring  a  writ  of 
error.  The  defect  will  not  be  aided  by  verdict,  nor  will  the 
conclusion,  "  contra  formam  statnti^''  cure  it.'  " 

The  charges  in  the  two  indictments,  by  their  very  number, 
sotting  forth  over  seventy-five  distinct  offenses,  after  dismiss- 
ing counts  for  over  one  hundred  other  offenses — those  retained 
varying  from  each  other  by  confusing  differences — were  cal- 
culated to  embarrass  and  oppress  the  defendant  in  his  defense. 
The  allegations  of  fraud  in  conduct  and  motive  not  being  sup- 
ported by  any  averment  of  facts  from  which  such  fraud  is 
necessarily  inferable,  the  other  allegations  as  to  the  transac- 
tions charged  are,  upon  a  reasonable  construction,  consistent 
with  the  innocence  of  the  defendant.  And  indictments,  in  my 
opinion,  ought  not  to  be  viewed  with  favor,  which,  by  the  ver\' 
multitude  of  their  counts,  serve  to  embarrass  and  confuse  the 
accused.  If  an  offense  can  not  be  stated  in  less  than  one  hun- 
dred counts  of  an  indictment,  I  do  not  think  that  public  justice 
will  suffer  if  the  indictment  be  dismissed. 

My  conclusion  is  that  the  indictments  on  all  the  counts  re- 
tained are  insufficient  to  hold  the  defendant,  and  that  the 
judgment  below  thereon  should  be  reversed  in  both  cases,  and 
judgment  entered  upon  the  demurrers  in  each  case  for  the  de- 
fendant, and  that  ho  be  discharged  therefrom. 


Note.— I  beg  to  add  my  unqualified  indorsement  to  that  part  of  the  able 
dissenting  opinion  of  Mr.  Justice  Field,  which  declares  that  if  an  offense 
can  not  be  stated  in  less  than  one  hundred  counts  of  an  indictment  public 
justice  will  not  suffer  should  it  be  dismissed.  I  should  say  that  an  indict- 
ment containing  over  a  dozen  counts  should  be  dismissed. 


STATE  V.  O'ROURK  ET  AL. 


689 


•mcnt  of 
uul  is  to 
Gildings, 
;n  indict- 
ing to  a 
I  circum- 

amount 
on  Crim- 
offenso 
1,  charge 
nstanccs, 

any  one 
efondant 

writ  of 

will  the 

number, 
r  dismiss- 
retained 
were  cal- 
s  defense. 
)eing  sup- 
fraud  is 
e  tran sac- 
consistent 
its,  in  my 
f  the  ver\' 
)nfuse  the 
1  one  hun- 
»lic  justice 

counts  re- 

that  the 

cases,  and 

or  the  de- 


;  of  tlie  able 
f  an  offense 
nient  public 
at  an  indict- 


State  v.  O'Rouek  et  al. 

(35  Neb.  614.) 

Sunday  Law  :  "  Sporting  "—Playing  base  ball. 

1.  Under  the  provisions  of  section  241  of  the  Criminal  Code,  any  person  of 

fourteen  years  of  age  or  upwards,  who  shall,  on  Sunday,  engage  in 
siJorting,  etc.,  shall  be  fined  in  a  sum  not  exceeding  120,  or  be  confined 
in  the  county  jail  not  exceeding  twenty  days,  or  both. 

2.  Playing  base  ball  on  Sunday  comes  within  the  definition  of  "sporting," 

and  renders  the  persons  engaging  therein  liable  to  the  punishment  pro- 
vided for  in  section  241. 

Error  to  District  Court,  Lancaster  County;  Hall,  Judffe. 

Tim  O'Kourk  and  others  were  arrested  on  a  complaint  and 
information  charging  them  with  a  violation  of  the  Sunday 
law  by  playing  base  ball.  The  case  was  submitted  to  the 
county  judge  on  a  stipulation  of  facts,  and  he  discharged  the 
defendants.  On  error  to  the  district  court  the  judgment  of 
the  county  court  was  affirmed.  Leave  was  obtained  to  file  a 
petition  in  error  in  the  su])reme  court  to  settle  the  law  of  the 
case.  Judgment  that  the  district  and  county  courts  erred  in 
holding  that  defendants  were  not  liable,  and  in  dismissing  the 
action. 

iY.  Z.  Snell,  County  Attorney,  FmnJc  IF.  Lewis  and  J.  R. 
Wc'?ffiter,  for  the  State. 
Charhs  E.  JLujoon,  for  the  defendants  in  error. 

Maxwkix,  C.  J.-  In  April,  ISOl,  the  county  attorney  of 
Lancaster  county  tiled  in  the  county  court,  a  conii)laint,  as 
follows :  "  The  complaint  and  information  of  James  G. 
Guild,  of  said  county,  made  before  me,  Willard  E.  Stewart, 
county  judge  of  said  county,  on  this  30th  day  of  April, 
A.  D.  ISOl,  who,  beinir  duly  sworn,  on  his  oath  says  that  Tim 
O'Rourk,  Charles  S.  Abbey,  Clarence  Baldwin,  John  O'Brien, 
Clarence  Conley,  Wm.  Goodenough,  Fred'k  Ely,  Chas.  Ham- 
burg, Jewett  Meekin,  Chas.  Collins,  John  CAine,  Henry  Ray- 
mond, John  Row^e,  Jesse  Burkett,  John  Irwin,  Owen  J.  Pat- 
ten, Philip  Tomney,  Park  Wilson,  Emmett  Rogers,  William 
Darnbrough,  each  of  said  persons  being  of  the  age  of  fourteen 
years  and  upwards,  on  the  26th  day  of  April,  A.  D.  1891,  said 
41 


GDO 


AMERICAN  CRIMINAL  REPORTS. 


jii 


i    ! 


(lay  being  the  first  day  of  the  week,  commonly  called  '  Sunday,' 
at  said  county  of  Lancaster,  did  unlawfully  engage  in  sporting, 
and  were  found  sporting  and  engaged  in  the  game  commonly 
called  *  base  ball,'  at  Lincoln  Park  base  ball  grounds,  an  en- 
closure Avhere  the  game  or  athletic  sport  commonly  known  as 
'base  ball'  is  played  and  performed  as  an  exhibition  by  ])ro- 
fessional  players  to  spectators,  who  are  admitted  to  such  exhibi- 
tion for  a  fee,  and  rewards  by  such  spectators  paid  to  view  the 
same,  there  being  then  present  about  thirty-five  hundred  spec- 
tators at  the  time  aforesaid  and  place  aforesaid,  viewing  said 
athletic  sport,  contrary  to  the  form  of  the  statute  in  such  case 
made  an;l  provided,  and  against  the  p?aco  and  dignity  of  the 
state  of  Nebraska. 

"Affiant  further  says  the  said  Tim  O'Rourk,  Chas.  S. 
Abbey,  Clarence  BaUlwin,  John  O'Brien,  Clarence  Conley, 
Wm.  Goodenough,  Fred'k  Ely,  Charles  Hamburg,  Jewett 
Meekin,  Chas.  Collins,  John  Cline,  Henry  Raymond,  John 
Howe,  Jesse  Burkett,  John  Irwin,  Owen  J.  Patten,  Philip 
Tomney,  Park  Wilson,  Emmett  Rogers,  William  Darnbrough, 
each  of  said  persons  being  of  the  age  of  fourteen  years  and  up- 
wards, on  the  2tjth  (hiy  of  A])ril,  A.  D.  1893.  said  day  being  the 
first  day  of  the  week,  commonly  called  '  Sunday,'  at  the  county 
of  Lancaster,  at  Lincoln  Park  base  ball  grounds,  an  enclosure 
where  the  game  or  athletic  s])ort  commonly  known  as  '  base 
ball '  is  played  and  performetl  by  professional  players,  employed 
and  hired  for  and  during  a  fixed  period  of  six  months  tlien 
current,  at  a  fixed  and  agreed  reward  and  monthly  salary,  to 
pursue  the  vocation  of  ])laying  said  game  of  base  ball  for  the 
entertainment  of  spectators  for  hire,  did  unlawfully  engage  in 
common  labor,  to  wit,  performing  the  game  or  atiiletic  sport 
commonly  known  as  '  base  l)all,'  for  hire,  the  same  being  their 
regular  emjiloyment  and  vocation,  in  which  said  employment 
and  vocation  they  were  then  and  there  found,  such  common 
labor  not  being  a  work  of  necessitv  or  charitv,  contrarv  to  the 
form  of  the  statute  in  such  case  made  and  provided,  and  against 
the  peace  and  dignity  of  the  state  of  Nebraska." 

The  ])arties  were  thereupon  arrested,  and  taken  before  the 
county  judge  for  trial. 

The  attorneys  for  i,li.>  parties  entered  into  an  agreement  as 
to  the  facts,  as  follows : 

"  It  is  hereby  stipulated  and  agreed  that  this  case  shall  be 


STATE  v.  O'ROURK  ET  AL. 


691 


Suiulay,' 
sporting, 
ammonly 
Is,  an  en- 
tnown  as 
n  by  pro- 
ch  exhibi- 
)  view  the 
Ired  spec- 
ving  said 
sucli  case 
ty  of  the 

Ciuas.  S. 
5  Con  lev, 
r,   Jewett 
nd,   John 
3n,  Pliilip 
rnbrough, 
rs  and  up- 
being  the 
;he  count}' 
enclosure 
n  as  '  base 
,  employed 
onths  tlien 
salary,  to 
lall  for  the 
engage  in 
iletic  sport 
being  their 
n])loyment 
li  common 
rary  to  the 
md  against 

before  the 

reement  as 

,se  shall  be 


submitted  to  the  above-named  county  judge  for  trial  and  de- 
termination upon  the  following  agreed  state  of  facts,  viz. : 

"First.  On  Sunday,  the  20th  day  of  April,  1891,  between 
the  hours  of  three  o'clock  and  five  o'clock,  v.  m.,  in  the  county 
of  Lancaster  and  state  of  Nebraska,  the  defendants  played  a 
game  of  base  ball. 

"  Second.  On  said  2r)th  day  of  April,  1S91,  each  of  the  said 
defendants  was  over  the  age  of  fourteen  years. 

'•  T/iii'ff.  The  playing  of  said  game  of  base  ball  was  not  a 
work  of  charity  or  necessity. 

"  Fourth.  Three  thousand  spectators  were  present  at  the 
time  said  game  of  base  ball  was  played,  and  paid  an  admittance 
fee  for  the  privilege  of  viewing  said  game  while  it  was  being 
played,  but  no  part  of  said  admittance  fee  was  paid  to  or  re- 
ceived by  the  defendants  or  any  of  them. 

"  Fifth.  On  the  day  said  game  of  base  ball  was  played,  the 
defendants  were  each  underemployment  by  the  month  to  play 
base  ball  for  compensation,  but  playing  base  ball  was  not  the 
usual  or  ordinary  vocation  of  the  defendants  or  any  of  them. 
"  Sixth.  Said  game  of  base  ball  was  playetl  ujwn  the  grounds 
of  private  parties,  and  was  not  played  within  one-half  mile  of 
any  dwelling  house,  school  house,  church  building,  or  the  limits 
of  any  incorjiorated  city  or  village.  Said  game  was  not  played 
within  one  hundred  yards  of  any  public  highway,  and  the 
grounds  up(m  which  said  game  was  played  were  enclosed  by  a 
tight  board  fence  ten  feet  high,  wliich  fence  completely  ob- 
structed the  view  from  the  outside  of  said  inclosure.  Said 
game  was  not  played  for  any  stakes,  wager,  or  thing  of  value. 
"Seventh.  Upon  the  foregoing  agreed  state  of  facts,  and 
without  further  testimony  or  evidence,  this  case  shall  be  sub- 
mitted to  said  county  judge  for  trial  and  determination." 

The  case  was  then  submitted  to  the  county  judge  upon  the 
complaint  and  stipulation  of  facts.  He  held  that  the  "  com- 
plaint and  stipulation  of  facts  do  not  charge  or  establish  facts 
constituting  an  offense  under  the  laws  of  the  state  of  Ne- 
braska," and  therefore  discharged  the  persons  accused. 

The  case  was  taken  on  error  to  the  district  court  to  settle 
the  law  relating  to  the  matter.  The  district  court  affirmed 
the  judgment  of  the  county  court,  whereupon  the  county 
attorney  asked  and  obtained  leave  of  this  court  to  file  a  peti- 
tion in  error  to  settle  the  law  of  the  case. 


ij 


Ct)3 


AMERICAN  CRIMINAL  REPORTS, 


!    , 


'■■'  i 


■■-') 


n 


Section  241  of  the  Criminal  Code  provides  :  "  If  an}'  person 
of  the  age  of  fourteen  yeai's  or  upward  shiill  be  found  on  the 
first  day  of  tlie  week,  commonly  called  'Sunday,'  sporting, 
rioting,  quarreling,  hunting,  fishing,  or  shooting,  he  or  she 
shall  be  lined  in  a  sum  not  exceeding  twenty  dollars,  or  be  con- 
fined in  the  county  jail  for  a  term  not  exceeding  twenty  days, 
or  both,  at  the  discretion  of  the  court.  And  if  any  person  of 
the  age  of  fourteen  years  or  upwanl  shall  be  found  on  the  first 
day  of  the  week,  commonly  called  '  Sunday,'  at  common  labor 
(work  of  necessity  and  charity  only  excepted),  he  or  she  shall 
be  fined  in  any  sum  not  exceeding  five  dollars  nor  less  than 
one  dollar;  Prooided,  nothing  herein  con...  i nod  in  relation  to 
common  labor  on  said  first  day  of  the  week,  commonly  called 
'  Sunday,'  shall  be  construed  to  extend  to  those  who  conscien- 
tiously do  observe  the  seventh  day  of  the  week  as  the  Sabbath, 
nor  to  ])revent  families  emigrating  from  traveling,  watermen 
from  landing  their  passengers,  superintendents  or  keepers  of 
toll  bridges  or  toll  gates  from  attending  and  superintending 
the  same,  or  ferrymen  from  conveying  travelers  over  the  water, 
or  persons  moving  their  families  on  such  days,  or  to  prevei.t 
railway  companies  from  running  necessary  trains." 

Webster  defines  "sporting:"  (1)  "To  pl.ay;  to  frolic;  to 
Avanton."  (2)  "  To  re])resent  by  any  kind  of  i)lay;"  and,  as  syn- 
onyms gives  "to play;  frolic;  game;  wanton."  (Ed.  1881,  p. 
1276.)  The  definitions  in  the  Century  are  the  same,  but  some- 
what more  extended.  In  the  same  authority  (Webster),  p.  Ill, 
"base  ball"  is  defined  as  "a  game  of  ball,  so  called  from  the 
bases  or  bounds  (usually  four  in  number)  which  designate  the 
circuit  which  each  player  must  make  after  striking  the  ball." 
That  playing  base  ball  comes  within  the  term  "  sj)orting,"  and 
is,  therefore,  a  violation  of  the  statute,  there  can  be  no  doul)t. 

But  it  is  claimed,  in  effect,  that  restraint  of  the  kind  named 
is  in  contravention  of  a  natural  right  or  religion,  and  there- 
fore is  in  excess  of  the  powei's  of  the  legislature.  The  right 
of  free,  equal,  and  undisturbed  enjoyment  of  religious  opinion, 
whatever  it  may  be,  and  to  fully  discuss  the  same,  is  secured 
to  every  one.  Free  discussion,  however,  is  the  outgrowth  of 
free  government.  All  free  government  is  based  on  the  Divine 
law.  God  gave  the  ten  commandments  to  Moses,  which  con- 
tain rules  designed  to  apply  to  the  whole  race.  Although 
given  to  the  Israelites,  they  were  designed  for  all  humanity. 


wmmmmmmm 


STATE  V.  O'ROURK  ET  AL. 


693 


The  Israelites  were  constantly  lapsin<^  into  idolatry.  There 
are  noble  exami)les  of  manhood,  however,  in  their  history,  but 
the  ignorance  of  the  public,  the  almost  continuous  wars,  in- 
ternecine, offensive,  or  defensive,  together  with  the  pagan 
influences  of  the  surrounding  nations,  prevented  the  develop- 
ment of  the  nation,  and  it  became  a  prey  to  tiie  ]iaI)ylonians, 
and  later  the  Roman  Empire.  If  we  look  at  tlie  world  at  the 
time  of  the  l)irth  of  Christ,  there  was  not,  so  far  as  we  know,  a 
nation  wliere  equal  and  just  rights  were  enjoyed  by  all,  nor 
where  the  rights  of  the  poor  were  adequately  protected  and 
enforced,  if  indeed,  considered.  The  Roman  Empire,  then  at 
the  height  of  its  power,  had  much  to  commend  it.  ^Many  of 
its  rulers  were  men  of  genius,  ability,  and  manhood,  but  pun- 
ishments of  all  kinds  were  of  the  most  cruel  character;  war 
was  carried  on  for  contpiest  and  with  a  degree  of  barbarity 
that  shocks  our  feelings  of  humanity.  Captives  were  sold  into 
slavery,  and  practically  possessed  no  rights  that  their  masters 
were  bound  to  respect.  A  pastime  of  the  Roman  populace 
was  to  witness  deadly  contests  of  captives  with  wild  beasts  or 
each  other.  Even  as  late  as  the  third  century  after  Christ's 
birth,  this  barbarous  practice  was  in  force.  Gibbon,  in  the 
Decline  and  Fall  of  the  Roman  Empire,  (Millman's  Ed.,  Vol.  1, 
J).  380),  says :  "  We  can  not,  on  this  occasion,  forget  the  des- 
perate courage  of  about  four  score  gladiators,  reserved,  with 
near  six  hundred  others,  for  the  inhuman  sports  of  the  amphi- 
theatre. Disdaining  to  shed  their  blood  for  the  amusement  of 
tlie  populace,  they  killed  their  keepers,  broke  from  the  place 
of  their  confinement,  and  filled  the  streets  of  Rome  with  blood 
and  confusion.  After  an  obstinate  resistance,  they  were  over- 
powered and  cut  in  pieces  by  the  regular  forces;  but  they  ob- 
tained at  least  an  honorable  death,  and  the  satisfaction  of  a 
just  revenge."  Cruelty  was  the  rule  and  death  inflicted  as 
punishment  for  trivial  causes.  Specimens  of  Roman  justice 
may  be  seen  in  the  trial  of  Christ  before  Pilate,  and  Paul  be- 
fore Felix  and  Festus.  In  neither  case  was  there  the  semblance 
of  an  accusation  based  upon  law,  yet  Christ  was  condemned  to 
please  a  mob  and  Paul  would  have  been  delivered  to  men  who 
had  sworn  to  kill  him  but  for  his  appeal  to  Caesar,  and  even 
then  he  was  held  a  prisoner  for  two  years  without  a  charge 
against  him.  The  indigent,  unfortunate,  and  discouraged 
were  permitted  by  the  law  to  sell  themselves  as  slaves,  and  the 


I   >\ 


694 


AMERICAN  CRIMINAL  REPORTS. 


r 
i. 


m 


riglits  of  the  poor  were  to  a  great  extent  at  the  mercy  of  the 
rich  and  powerful.  While  there  were  amphitheatres  for  the 
exhibition  of  brutal  contests  between  men  and  wild  beasts,  or 
captives,  to  furnish  amusement  to  an  unfeeling  populace,  there 
were  no  public  hospitals  for  the  insane,  sick,  or  unfortu- 
nate. In  addition  to  this,  covetousness,  licentiousness,  an«I 
other  vices  prevailed  to  an  extent  unknown  at  the  present 
time,  nor,  so  far  as  we  are  informed,  was  any  nation  superior 
in  any  of  these  respects  to  the  llomans. 

The  most  favorable  view  that  can  be  taken  of  any  govern- 
ment of  that  date  is  to  say  that  might  alone  controlled,  and 
riffht  was  a  remote  consideration. 

The  birth  of  Christ  was  ushered  in  by  the  proclamation  by 
angels  of  ])eace,  "  Glory  to  God  in  the  highest,  and  on  earth 
peace,  good  will  to  men."  Ilis  birth  was  among  the  poor  and 
lowly,  as  if  to  show  that  wealth  is  a  mere  circumstance  which 
adds  nothing  to  either  the  usefulness  or  resjjectability  of  its 
]iossessor.  He  taught  purity  of  life,  unselfishness,  good  will 
towards  friends  and  foes  alike,  doing  good  to  all  as  opportu- 
nity offered  ;  that  religion  affected  and  controlled  the  life  of 
the  individual,  and  did  not  consi-^t  in  niere  ortward  observ- 
ances. He  condemned  covetousness,  licentiousness,  selfish- 
ness and  self-righteousness,  and  insisted  on  the  equality  of  the 
race.  lie  practiced  Ilis  own  preaching,  and  led  a  life  of  pov- 
erty, purity  and  doing  good.  None  so  poor  as  not  to  claim 
Ilis  sym])athy  and  assistance,  nor  so  wealthy  and  great  as  to 
be  above  His  consideration.  The  lepers,  the  blind  Bartimeus, 
the  rich  centurion,  alike  were  reciinents  of  His  beneficence. 
All  were  welcome,  the  only  conditions  being  that  they  needed 
His  aid  and  applied  for  it.  His  unselfishness,  His  magna- 
nimity, the  nobility  of  His  character,  were  misunderstood  by 
those  who  were  looking  for  a  deliverer  from  the  Itoman  yoke, 
and  by  others  who  had  been  taught  to  regard  the  law  of 
Moses  as  perfection.  The  Jews,  who,  as  the  children  of 
Abraham,  deemed  themselves  as  the  favored  jxioi)le  of  God, 
■were  neither  expecting  nor  desiring  a  leader  for  mankind,  but 
rather  one  who,  like  Moses,  Avould  lead  them  out  of  hated 
Roman  bondage;  neither  could  they  understand  a  system 
that,  while  accepting  much  of  the  law  of  Moses,  proposed  to 
supersede  its  rites  and  ceremonies.  Many  centuries  before, 
the  prophets,  in  glowing  language,  had  foretold  the  birth  of  a 


1W 


STATE  V.  O'ROURK  ET  AL. 


095 


son,  the  Prince  of  Peace,  wlio  woul<l  establish  His  throno  with 
juilj,'iaent  and  justice  forever.  Tiiese  statements  seem  to 
have  been  taken  literally,  as  a|)i)lyin«^  alone  to  an  <'artlilv 
])rinco  who  should  destroy  the  enemies  of  ihe  Jews.  It  is 
apparent,  however,  that  the  prophets'  utterances  refer  to  a 
spiritual  ruler,  who  would  conquer  by  love,  and  whose  fol- 
h)\vers  would  bo  guided  by  his  precepts  and  establish  justice 
and  right. 

From  the  crucifixion  of  Christ  until  the  present  time  the  con- 
test between  Christianity  and  wrong  has  been  going  on. 
Whenever  Christianity  has  prevailed,  free  and  untrammeled 
liberty  has  existed.  It  forbids  cruelty,  haughtiness,  arrogance, 
pride,  licentiousness  and  covetousness.  It  recjuiresa  return  of 
good  for  evil,  and  aid  for  the  suffering  in  distress,  whether 
friend  or  foe,  and  has  established  the  rule  that  we  shall  do 
unto  others  as  we  would  have  them  do  unto  us.  It  recjuires 
honesty,  honor  and  integrity  in  all  the  affairs  of  life,  and  fair 
treatment  of  every  one.  In  every  Christian  land  it  has  swejjt 
away  the  harem  and  seraglio,  made  bigamy  and  ])olygamy 
crimes,  and  elevated  women  from  a  condition  of  semi-serfd<mi 
to  be  the  e<  'al  of  man.  It  has  broken  the  captive's  chains 
and  mitigated  the  horrors  of  war,  and  there  are  indications 
that  between  Christian  nations  at  least,  soon  "  they  shall  beat 
their  swords  into  plowshares,  and  their  spears  into  pruning 
hooks."  It  has  abolished  slavery  in  every  Christian  land,  and 
enfranchised  the  slave  and  given  him  an  oj)portunity  to 
develop  his  manhood.  It  has  ennobled  labor  and  established 
the  rule  that  "  the  laborer  is  worthy  of  his  hire."  "VVe  admire 
the  declaration  of  independence  as  a  statement  of  principles 
based  upon  the  ecjuality  of  the  race,  and  give  credit  to  the 
authors  as  statesmen  and  benefactors,  not  only  of  this  nation, 
but  mankind.  The  sturdy  independence  of  the  barons  who,  at 
Runny mede,  comi)elled  King  John  to  sign  Mm/tui  Charta, 
has  been  the  subject  of  eulogy  in  both  song  and  story,  but  the 
principles  of  both  are  found  in  the  sermon  on  the  mount.  It 
mav  safelv  be  said  that  the  charter  of  liberty  reaches  back  to 
Christ's  teaching.  Christianity  is  woven  into  the  web  and 
woof  of  free  government  and  but  for  it  free  government 
would  not  have  existed,  because  no  other  system  has  been 
able  to  check  the  selfishness,  greed,  arrogance,  cruelty  and 
covetousness  of  the  race. 


f 


096 


AMERICAN  CRIMINAL  REPORTS. 


I 


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^^ 

In  People  v.  RugyleH,  8  Johns.  (N.  Y.)  294,  in  a  prosocution 
for  blasplierny,  Chief  Justice  Kent  said  :  "There  is  nothing 
in  our  manners  or  institutions  whicli  lias  prevented  tlio  api)li(;a- 
tion  or  the  necessity  of  this  part  of  the  common  lau'.  We 
stand  equally  in  need,  now  as  formerly,  of  all  that  moral  dis- 
cipline, and  of  those  principles  of  virtue?,  which  help  to  bind 
society  together.  The  people  of  this  state,  in  common  with 
the  people  of  this  country,  profess  the  general  doctrines  of 
Christianity  as  the  rule  of  their  faith  and  ])ractice ;  and  to 
scandalize  the  author  of  these  doctrines  is  not  onlv,  in  a  relijr- 
ious  point  of  view,  extremely  impious,  but,  even  in  rcs|>ect  to 
the  obligations  due  to  -.ociety,  is  a  gross  violation  of  decency 
and  good  order.  Nothing  could  be  more  olFensivo  to  the 
virtuous  ])art  of  the  community,  or  more  injurious  to  the 
tender  morals  of  the  young,  than  to  declare  such  jtrofanity 
lawful.  It  would  go  to  confound  all  distincti<m  betwijen 
things  sacred  and  profane,  for,  to  use  the  words  of  one  of  t!io 
greatest  oracles  of  human  wisdom,  '  profane  scolHng  doth  by 
little  and  little  deface  the  reverence  of  religion,'  and  who  adds 
in  another  ])lace, '  two  principal  causes  have  I  ever  known  of 
atheism — curious  controversies  and  profane  scoillng.'  (2  Ld. 
I>ac.  291,  5U3.)  Things  which  corru|)t  moral  sentiment,  as 
obscene  actions,  prints  and  writings,  and  even  gross  instances  of 
seduction,  have,  upon  the  same  i)rinciple,  been  held  indictable; 
and  shall  we  form  an  exception  in  these  ])articulars  to  the  rest 
of  the  civilized  world  ? " 

It  may  be  true  that  the  professed  followers  of  Christ  nro 
not,  in  all  cases,  as  unselfish  as  they  should  be,  or  is  is  llnir 
right  and  privilege,  but  progress  is  being  i"  '  (bat  direc- 
tion, and  many  examples  of  self-denial  and  illishncss  mn 
be  found.  Let  a  cry  of  distress  an<l  a  ca,  for  hc'p  come 
from  any  part  of  the  world  by  reason  of  some  great  <  alamity, 
and  the  Christian  nations  at  once  respond  by  liberal  t<nitribu- 
tions  and  other  means  to  relieve  the  distress.  Schools  and 
colleges  are  liberally  provided  and  patronizetl,  and  education 
is  general.  Hospitals  and  asylums  exist  on  every  hand  for  the 
poor,  the  insane,  the  blind,  deaf  and  unfortunate,  while  pun- 
ishments for  offenses  are  graduated  in  proportion  to  the 
offense,  and  a  conviction  can  onl_y  take  place  after  a  fair  pub- 
lic trial  upon  s])ecific  charges,  and  death  is  imposed  in  no  case 
except  murder  or  treason.     No  fair-minded  student  of  history 


Ipl' 


STATE  I'.  O'llOUHK  ET  AL. 


Gl»( 


will  deny  that  those  honofits  and  liluTty  itsolf  flow  from 
Christianity.  It  appeals  alone  to  i-cason  and  asks  for  adop- 
tion because  of  its  excellence.  It  makes  no  person  the  keeper 
of  another's  conscience,  hut  recpiires  every  one  to  ]\u\>rt'  and 
act  for  himself.  It  tolerates  the  utmost  freedom  of  opinion 
and  worship,  and  seeks  to  coerce  no  one  except  hy  the  force 
of  reason. 

liut,  while  allowing  the  force  of  reason  to  bo  the  sole  guide 
in  the  adoption  or  rejection  of  Christianity,  its  followers 
have  been  impelled  from  duty  to  combat  wrong  and  oppression 
on  every  hand.  These  were  strongly  intrenched  in  the  sellish- 
ness,  covetousness,  and  other  vices  of  the  race,  so  that  they 
have  yielded  slowly,  but  they  have  been  gradually  dispelled 
like  clouds  after  a  storm,  so  that  the  sun  shines  almost  clearlv 
and  without  obstruction.  This  result  has  been  brought  about 
by  almost  constant  elTort,  and  has  cost  tiie  lives  of  hundreds  of 
thousands  of  martyrs  and  patriots,  and  it  can  only  be  ja-eserved 
by  constant  vigilance.  As  a  Christian  peo])le,  therefore,  jeal- 
ous of  their  liberty  and  desiring  to  preserve  the  same,  the 
state  has  enacted  certain  statutes,  which,  among  other  things, 
in  effect  recognize  the  fourth  commandment  and  the  Christian 
religion,  and  the  binding  force  of  the  teachings  of  the  Saviour. 
Among  these  is  the  statute  which  prohibits  sporting,  hunting, 
etc.,  on  Sunday. 

The  human  body,  considered  as  a  machine,  is  the  most  ])ep- 
fect  mechanism  of  which  we  have  any  knowledge.  If  pi-operly 
cared  for  and  treated,  it  will,  in  ordinary  cases  where  there 
are  no  hereditary  defects,  retain  its  vigor  and  vitality  to  old 
vn^e,  but  every  movement  of  the  body  or  action  of  the  brain 
involves  waste  of  the  vital  force,  and  this  the  Creator  has  j)ro- 
vided  shall,  to  a  great  extent,  be  replenished  during  sleep. 
Hence,  it  is  necessary  to  spend  about  one-third  of  our  time  in 
sleep.  AVhilo  it  is  true  that  the  reserve  force  of  life  is  so  great 
in  many  persons  as  to  enable  them  to  live  for  a  time  with  less 
than  the  normal  amount  of  sleep  required,  yet,  if  continued 
for  any  considerable  time,  the  general  health  will  be  affected, 
and  to  entirely  abstain  from  sleep  for  a  Aveek  or  more,  as  in 
cases  of  certain  fevers,  like  the  typhoid,  almost  unavoidably 
results  in  temporary  insanity,  if  not  death.  But  the  recupera- 
tion from  sleep  in  most  cases  does  not  restore  full  tone  to  the 
svstem,  and  Sunday  is  like  an  oasis  in  the  journey  of  life 


^11 


698 


AMERICAN  CRIMINAL  REPORTS. 


■^i 


whore  eacli  traveler  may  be  refreshed  and  become  more  able 
to  continue  the  performance  of  his  duties  or  labors.  As  a 
natural  consequence,  if  the  vitality  of  the  body  is  ])ermitted 
steadily  to  decrease  without  being  replenished,  life  will  be  pro- 
portionately shortened.  Therefore,  if  a  person  labors  contin- 
uously at  hard  and  exacting  labor,  without  rest,  for  many 
years,  his  health  is  liable  to  be  impaired,  and  he  become  pre- 
maturely old.  No  doubt  one  of  the  objects  of  the  Creator  in 
establishing  the  Sabbath  as  a  day  of  rest,  was  to  provide  for 
restoring  and  retaining,  as  far  as  possible,  health  and  strength 
and  perfect  action  of  the  body.  Every  person  of  observation 
knows  that  the  man  who  labors  seven  days  in  the  week  con- 
tinuously' for  any  considerable  length  of  time,  lacks  the  s|)ring 
and  elasticity  of  action  of  another  of  like  years  and  naturally 
active  habits,  who  rests  on  Sunday.  Ex|)erience  has  also  shown 
that  men  will  accomplish  more  labor  in  a  series  of  years  by 
working  six  days  in  the  week  than  by  continuous  application. 

Sunday  is  to  be  a  day  of  rest.  Worldly  cares  are  to  be  laid 
aside,  and  the  worries  of  business  or  pleasure  thrown  off.  How 
gladly  the  tired  laborer,  workman,  farmer,  merchant,  manu- 
facturer, attorney  and  judge  welcome  Sunday  as  a  day  of  rest, 
and  on  the  succeeding  Jkfonday  enter  upon  their  respective 
labors  Avith  renewed  strength  and  vigor.  The  idler  and  trifler 
may  complain  of  the  loss  of  time  from  resting  on  Sunday;  but 
the  active,  intelligent  worker  knows  that  thereby  he  lias  in- 
creased his  capital  stock  of  health  and  chances  of  longevity. 

Christ  sought  to  apply  the  Sabbath  to  its  ai>|)ropriate  use. 
The  Jewish  religion  at  that  time  consisted  largely  of  outwaril 
ceremonies,  which  were  performed  with  a  rigor  never  intended 
by  the  author  of  the  Mosaic  law.  It  is  evident  that  great  re- 
liance was  placed  upon  these  outward  ceremonies.  Christ, 
however,  while  not  condemning  many  of  these  ceremonies,  in- 
tended to  show  that  the  mere  observance  of  these  was  not  suf- 
ticient;  that  the  Sabbath  was  made  for  man,  and  not  man  for 
the  Sabbath;  and  in  effect,  therefore,  that  works  of  charity, 
mercy  and  necessity  not  only  could,  but  if  necossary  should, 
be  performed  on  that  day.  He  recognized  the  Sabbath,  how- 
ever, as  a  day  of  rest  set  apart  by  the  Creator.  After  his  death 
and  resurrection,  his  di8cii)les,  to  commemorate  that  event, 
changed  the  day  to  the  first  day  of  the  week,  and  that  day  is 
now  observed  by  the  great  body  of  his  followers  throughout 


lore  able 
3.  As  a 
erinitted 
II  be  y)ro- 
•s  con  tin - 
or  many 
lome  pre- 
rcator  in 
ovido  for 
stren<^th 
servation 
k'eok  con- 
lie  spring 
naturally 
I  so  shown 

years  by 
])lication. 
to  be  laid 
jff.  How 
nt,  manu- 
iiy  of  rest, 
•espective 
md  triiler 
nday;  but 
le  isas  in- 
igevitv. 
>riate  use. 
f  outward 

intended 
t  great  re- 
Christ, 
iionies,  in- 
is  not  suf- 
t  man  for 
»f  cliarity, 
I'V  should, 
)ath,  how- 
r  his  death 
Hit  event, 

Hit  day  is 
hroughout 


STATE  V.  O'ROURK  ET  AL. 


609 


the  world,  and  is  recognized  by  both  the  common  and  statute 
law. 

In  this  state  the  right  of  every  one  to  worship  God  accord- 
ing to  the  dictates  of  his  ovvn  judgment  and  'conscience  is 
recognized,  and  hence  it  permits  those  who  prefer  to  keep  the 
seventh  in  place  of  the  first  day  of  the  week  to  do  so.  The 
law,  both  human  and  divine,  being  thus  in  favor  of  abstaining 
from  sporting,  etc.,  on  Sunday,  is  a  reasonable  recjuiremen't 
and  should  be  enforced.  The  deliberate  violation  of  such  a 
law,  there  is  reason  to  believe  in  many  cases,  is  but  the  com- 
mencement of  a  series  of  offenses  that  lead  to  infamy  and  ruin  ; 
and  in  any  event  the  influence  upon  the  participants  them- 
selves has  a  tendency  to  break  down  the  moral  sense  and 
make  them  less  worthy  citizens.  The  state  has  an  interest  in 
their  welfare  and  may  i)revent  their  violation  of  the  law. 
The  state,  in  order  to  prevent  vice  and  immorality,  may  ])unish 
licentiousness,  gambling  of  all  kinds,  the  keeping  of  lotteries^ 
enticing  minors  to  gamble,  or  to  })ermit  one  under  eighteen 
years  of  age  to  remain  in  a  billiard  room ;  to  punish  publish- 
ing, keeping,  selling,  or  giving  away  any  obscene,  indecent,  or 
lascivious  paper,  book,  or  picture,  and  also  i)unish  any  i)erson 
who  shall  lend  or  show  to  any  minor  child  any  such  paper, 
publication,  or  picture,  etc.  The  law  also  punishes  the  dis 
turber  of  a  religious  meeting,  school  meeting,  election,  etc. 
These  cases  show  the  importance  felt  by  the  legislature  of 
evils  of  the  kind  named  and  others,  by  means  of  which,  in 
addition  to  wrongs  inflicted  on  the  persons  injured,  a  spirit  of 
insubordination  is  created  and  fosteretl  which  incites  to  evil 
and  tends  to  subvert  the  just  and  e(jual  rights  of  some,  or  all. 
In  addition  to  this,  every  person  has  a  right  to  the  quiet  and 
])eace  of  a  day  of  rest.  lie  has  also  a  right  to  the  enforce- 
ment of  the  law,  so  that  the  evil  example  of  a  defiance  of  the 
law  shall  not  be  set  before  his  children,  The  state  has  an 
interest  in  their  welfare  also,  in  order  that  they  may  become 
useful  citizens  and  worthy  and  honorable  members  of  society. 
The  fact  that  the  defendants  were  some  distance  away  from 
the  residence  of  any  person  can  make  no  difference.  It  did 
not  change  the  nature  of  the  offense  nor  excuse  the  act.  It 
was  a  violation  c»f  the  law  just  the  same. 

The  question  liere  presented    was  before  the  Kansas  City 
court  of  appeals  in  State  v.  Will  hum,  35  Mo.  App.  511,  and  it 


a 


''I 


700 


AMERICAN  CRIMINAL  REPORTS. 


Avas  held  the  parties  were  liable.  Afterwards  the  question  of 
the  validity  of  a  contract  arose.  In  iSt.  Louis,  etc.,  Associa- 
tion V.  Delano,  37  Mo.  App.  234,  in  an  action  upon  a  contract, 
it  was  held  that  under  the  Missouri  statute  athletic  games 
and  sports  on  Snnda}'^  were  not  prohibited.  The  case  was  then 
taken  to  the  supreme  court  of  that  state,  where  the  judgment 
was  affirmed.  {St.  Zouia,  etc.,  Association  v.  Delano,  18  S. 
W.  Rep.  [Mo.],  1 101.)  An  examination  of  the  statute  shows 
that  it  is  not  as  broad  as  ours.  In  addition  to  this  it  is 
evident  the  question  of  the  validity  of  the  contract  was  not 
raised  by  the  pleadings  and  therefore  was  not  an  issue. 
Unilcr  our  statute,  however,  spctrting  is  clearly  prohibited  and 
the  party  guilty  thereof  is  liable  to  the  punishment  ])rovided 
by  statute.  It  is  unnecessary  to  consider  the  other  branch  of 
the  case. 

The  district  court  and  also  the  county  court,  erred  in  hold- 
ing the  defendants  were  not  liable,  and  dismissing  the  action. 

The  other  judges  concur. 

tioTE.— Innocent  amusements  not  uvdcrthehan  of  outlau-ry.— 'Hio  (lecMon 
in  tlie  alwve  case,  while  designed  to  present  the  religious  view  of  tlic  Sabbath, 
is  not  correct  from  the  standpoint  of  the  scriptures;  is  not  fortified  by  reason 
nor  sujjported  by  authority.  Innocent  amusements,  %v1hc1i  do  not  tend  to 
provoke  breaches  of  the  peace  or  disturb  the  peace  and  quiet  of  the  ni'igh- 
borhijod,  are  not  forbidden  by  any  law,  human  or  divine.  Even  Queen 
Elizabeth  in  1569,  granted  permission  to  John  Sconton  Powlton.  to  have  and 
use  certain  jjlays  and  games  on  Sundays  "  for  his  better  relief,  comfort  and 
sustentucion."    (Enc.  Brit.  9th  Ed.,  Sunday.) 

In  the  ease  of  Association  v.  Delano,  18  S.  W.  1101,  referred  to  in  the 
opinion,  Mr.  Chief  Justice  Sherwood,  delivering  the  opinion  of  the  court, 
says: 

"  The  result  of  the  application  of  these  princi|)les  is  that  it  eliminates  from 
this  cause  all  questions  relating  to  Rev.  St.  1H89,  §  \W}2,  which  prohibits 
labor  on  Sunday,  and  to  section  iiTJ)!),  proiiibiting  public  boxing,  ant!  to  sec- 
tion 38.")."),  jirohibiting  tlie  sale  of  litpior,  etc.  None  of  those  sec^tions  forbid 
or  punish  "  athletic  games  and  sports  "  on  Sunday,  nor  is  tiiere  any  such 
statute,  unless  section  iWA  is  to  be  considered  such  a  one.  That  section 
reads  thus:  "Every  person  who  shall  be  convicted  of  liorHe-racmg.  cock- 
fighting,  or  playing  at  cards  or  games  of  any  kind,  on  the  first  day  of  the 
week,  commonly  called  '  Sunday,'  shall  be  deemed  guilty  of  a  misdemeanor, 
and  fined  not  exceeding  fifty  dollars."  But  these  prohibitions  are  evidently 
leveled  against  six)rts  and  games  that  have  a  demoralizing  tendency,  and 
do  not  ext«>nd  to  mere  athletic  sportf .  Besides,  this  section  is  jwnal,  and 
therefore  to  be  strictly  construed.  Howell  v.  Stewart,  54  Mo.  4()0;  Fusz  v. 
Upaunhorst,  67  Mo.  256." 

The  first  day  of  the  week,  known  as  the  Lord's  Day,  or  Sunday,  was  ob- 


STATE  V.  O'ROURK  ET  AL. 


701 


served  by  the  early  Cliristians  in  commemoration  of  the  resurrection  of 
Christ  on  that  day,  and  other  noted  facts  subswiuently  occurring,  such  aa 
the  descent  of  tlie  Holy  Ghost  on  the  day  of  Pentecost,  since  known  among 
Christian  denominations  as  Pentecost  Sunday.  The  Emperor  Constantine, 
in  the  year  of  our  Lord  311,  issued  an  edict  providing  that  the  courts  of 
justice  should  be  closed  on  Sunday,  except  for  the  granting  of  manumissions 
to  slaves,  and  forbidding  the  inhabitants  of  towns  and  those  engaged  in  the 
pursuit  of  handicrafts  from  working  on  Sunday,  with  a  proviso  in  favor  of 
pei-sons  engaged  in  agricultural  labor.  Succeeding  emjierors  from  time  to 
time  issued  similar  but  more  stringent  edicts,  which  it  is  unnecessary  hero 
to  review.  The  ecclesiastical  courts  always  assumed  to  enforce  Sunday 
ol)servance,  and  during  the  long  Parliament  laws  were  enacted  for  the  pur- 
pose of  enforcing  strict  observance  of  Sunday,  and  in  1644  traveling  and 
"vainly  and  profanely  walking"  on  the  Lord's  Day  were  visited  with 
severe  penalties. 

The  early  history  of  the  Annn-ican  colonies  furnishes  ample  evidence  of 
the  influence  which  those  laws  had  in  shaping  legislation  and  formuhiting 
decision  on  the  subject  in  hand. 

From  the  hour  of  tlie  Decalogue  to  the  day  of  the  Declaration  of  American 
Independence — two  of  the  world's  great  evangels — the  edicts,  laws  and 
decrees  of  rulers,  legislators  and  judges,  were  moulded  in  the  ci'ucible  of 
their  respective  ri'ligions.  Even  the  pilgrim  and  cavalier,  who  first  sought 
refuge  in  America  from  the  bigatry  of  their  fatherland,  revived,  perchance 
in  the  fervor  of  new  found  freedom,  that  same  intoleivince  to  others  that 
had  driven  them  hithej-.  Reading  aright  the  so-called  religious  history  of 
the  past,  we  can  not  but  the  more  keenly  appreciate  and  a[)prove  the  wisdom 
that  inspired  the  fathers  of  the  republic  in  incorporating  in  its  natal  polity 
the  absolute  and  unalterable  separation  of  Church  and  State. 

In  many  states  of  this  Union  to-day,  if  a  person  who  is  out  walking  or 
driving  on  Sunday  for  recreation,  sustain  injury  from  the  wilful  neglect  or 
unlawful  conduct  of  another,  tlie  law  aflfoi-ds  him  no  redress  against  the 
wrongdoer,  because  he  was  "  vainly  and  profanely  "  walking  or  driving;  on 
the  Lord's  Day.  But.  if  he  sustains  injury  while  on  his  way  to  a  place  of 
worship,  the  same  law  which  denies  him  redress  in  the  one  case,  provides  a 
remedy  in  the  other.  Are  not  these  laws  and  decisions  tinctured  with  tlie 
religious  sentiments  of  the  legislators  and  judges  who  make  and  interpret 

them  ? 

I  should  gladly  sanction  impartial  legislation  ordaining  one  day  of  rest  in 
every  seven  ;  and  if  thit  day  of  rest  should  fall  on  Sunday,  it  would  meet 
with  hearty  approval  from  the  great  majority  ot  the  American  i)eople ;  but 
I  could  never  willingly  assent  to  legishition  which  would  place  tlie  ban  of 
outlawrv  upon  perscms  who  believe  in  innocent  an<l  lawful  recreation,  com- 
bined vvith  rest,  on  the  Sabbath  Day,  or  which  shall  deprive  persons  pursu- 
ing a  i)articular  profession  or  vocation,  of  their  property,  unless  there  was 
someting  in  the  nature  of  the  property  aimed  at,  or  in  the  vocation  pursued, 
hurtful  to  society. 

It  is  not  within  the  province  of  the  legislature  to  enforce  an  observance  of 
religious  duty  on  the  Sabbath.  Such  legislation  as  the  act  in  question  has 
for  its  only  biisis  principles  that  are  wholly  secular  and  finds  justification 
wholly  in  its  being  a  matter  of  public  policy,  all  of  which  is  none  the  less 


?  hi    : 


702 


AMERICAN  CRIMINAL  REPORTS. 


true  because  of  Sunday  being  the  day  affected  by  such  laws.  McGettriek 
V.  Wasson,  4  Ohio  St.  566;  Richmond  v.  Moore,  107  111.  429. 

The  fii-st  article  of  amendment  of  the  federal  constitution,  and  the  third 
section  of  Art.  3  of  our  own  constitution,  guarantee  the  exercise  of  religious 
worship  to  all,  and  prohibit  any  preference  from  being  given  by  law  to  any 
denomination  or  mode  of  worship.  In  this  respect  the  line  of  demarkation 
between  church  and  state  is  clearly  drawn,  and  tiie  perfect  equality  of  all 
persons  before  the  law  is  clearly  recognized,  and  it  is  only  necessary  for  us 
to  walk  in  the  path  marked  out  by  the  founders  of  the  republic  to  enjoy  the 
fruitage  of  the  best  and  wisest  government  ever  devised  by  man. 

It  is  aptly  and  forcibly  said  by  the  court,  in  Richmond  i\  Moore,  supra, 
that  "  In  all  countries  and  ages  among  civilized  or  partially  civilized 
peoples,  governments  have  set  ai)artdays  of  rest,  recurring  at  short  periods. 
This  ha8  been  and  still  is,  regarded  as  necessary  to  the  temporal  welfare  ot 
the  people,  as  a  certain  amount  of  rest  is  regarded  as  absolutely  necessary 
to  man  and  animals  subjected  to  lalwr.  Considerations  of  public  jMilicy 
demanding  such  periods  of  rest,  and  the  great  body  of  Christians  holding 
the  observance  of  Sunday  to  be  a  religious  duty,  it  is  natural  that  tlie  law- 
making ])ower,  as  a  matter  of  public  policy,  should  specify  Sunday  as  the 
day  of  rest,  thereby  conforming  ))ublic  policy  to  religious  sentiment.  But 
that  Sunday  is  kept  as  a  holy  day  by  most  Christian  denominations  neither 
adds  to  nor  detracts  from  the  validity  of  the  enactment.  Had  any  other 
day  of  the  week  been  selected  the  enactment  would  have  had  the  same  bind- 
ing force." 

Unless,  therefore,  we  keep  constantly  in  mind  the  fact  that  the  act  rests 
u|x>n  public  i)olicy  alone,  unless  we  keep  in  mind  the  further  fact  that, 
in  this  country,  at  least,  the  church  and  State  are  separate,  we  will  be  in 
danger  of  giving  the  act  a  wrong  construction,  and  "  instead  of  reading  it 
in  the  light  of  the  constitution  which  prohibits  any  religious  tests  and  jnei- 
erences,  find  ourselves  led  away  from  its  meaning  by  the  influence  of  our 
own  peculiar  theological  tenets."  TilUK.MAN,  C.  J. ,  in  McGettrick  v.  IVusson, 
supra. 


In  re  Wkiib. 

(89  Wis.  354.) 

Suspension  op  Sentence— Pou'er  of  court—Habeas  corpus. 

A  court  baa  no  power  to  suspend  execution  of  sentence,  excej>t  as 
incident  to  a  writ  of  error  or  on  some  other  legal  ground;  and  having 
sentenced  defendant  to  pay  a  fine,  and  to  stand  committed  until  it 
was  paid,  not  exceeding  six  months,  the  term  of  imprisonment  for  fail- 
ure to  pay  the  fine  commenced  at  once;  and  where  the  court  without 
legal  cause  suspended  execution  of  the  sentence  till  further  order,  and 
no  further  order  was  made  till  after  expiration  of  the  six  months,  de- 
fendant could  not  thereafter  be  committed,  though  the  fine  was  not 
paid. 


I' I 


IN  RE  WEBB. 


703 


Habeas  corpus.    "Writ  allowed   by   Mr.   Justice    Cassody. 
Demurrer  to  sheriff's  return  sustained. 

T.  L.  Cleary,  for  petitioner. 

E.  M.  Lowi'ij  and  Z.  K.  Luse,  Asst.  Att'y  General    for  re- 
spondent. 

PixNEY,  J.  The  petitioner  was  convicted  of  the  crime  of 
adultery  in  the  circuit  court  for  Grant  county,  and  on  the  Ifitli 
day  of  March,  1894,  at  the  request  of  the  attorneys  for  the 
state  and  for  tlie  defendant,  he  was  sentenced  to  pay  a  line  of 
$200,  and  to  pay  the  costs  of  tiie  prosecution,  taxed  at  §400, 
and  stand  committed  to  the  common  jail  of  the  county  until 
such  line  and  costs  were  paid,  the  ])erioil  of  imprisonment  to 
be  limited  to  six  montiis  ;  and,  in  case  said  costs  were  paid  that 
day,  the  court  directed  "  that  the  sentence  of  imprisonment  be 
suspended  until  the  further  order  of  the  court."  The  defend- 
ant paid  the  costs  accordingly.  At  a  succeeding  term,  October 
12, 1S94,  the  defendant  being  present  in  court  with  his  counsel, 
the  court  made  an  order  reciting  the  sentence  ;  that  the  tine 
had  not  been  paid,  and  "that  there  is  good  reason  why  further 
leniency  should  not  be  extended  to  the  defendant,  but  that  he 
should  be  required  to  fully  comply  with  said  sentence,  or  be 
committed  to  the  common  jail  until  said  tine  is  paid; "  order- 
ing and  adjudging  that  the  defendant  "  do  forthwith  pay  said 
fine  of  $200,  and  that  he  stand  committed  to  the  common  jail 
of  the  county  until  said  tine  is  paid,  the  period  of  imprison- 
ment being  limited  in  accordance  with  said  sei.Lence  to  the 
period  of  six  months."  A  commitment  was  issued  acc<jrd- 
in<rlv,  under  which  the  defen<lant  was  confined  in  the  county 
jail.  These  facts  appearing  by  the  return  of  the  sheriff  to 
the  writ  of  habeas  corpus,  the  petitioner  demurred  to  the 
return. 

No  legal  reason  appears  to  have  existed  to  warrant  the 
court  in  suspending  its  sentence,  in  whole  or  in  part,  after 
it  had  been  pronounced,  if  it  be  conceded  the  court  hail 
such  power.  The  action  of  the  court  seems  to  have  been 
founded  on  the  joint  request  of  the  prosecution  and  of  the  de- 
fendant, and  to  have  been  granted  as  a  matter  of  leniency  to 
the  defendant.  While  it  may  be  said  that  the  defendant  is  in 
no  position  to  complain  or  take  advantage  of  the  clemency  of 


H 


701 


AMERICAN  CRIMINAL  REPORTS. 


the  court,  the  question  at  issue  is  one  of  power,  involvin*^  serious 
considerations  of  public  policy  resi)ecting  the  administration 
of  criminal  justice.  After  the  defendant  had  been  convicted, 
and  the  sentence  of  the  law  in  legal  and  proper  form  had 
been  pronounced  against  him,  it  is  difficult  to  understand  upon 
what  principle  the  court  could  further  interfere  in  the  preni-  > 
ises.  The  right  of  the  court,  for  cause,  within  the  exercise  of 
a  reasonable  discretion  to  postpone  sentence  or  suspend  sen- 
tence, as  it  is  said,  seems  to  be  clear ;  but  we  think  both  upon 
principle  and  authority,  its  right  to  suspend  the  execution  of 
the  sentence  after  it  had  been  pronounced  cannot  be  sustained, 
except  as  incident  to  a  review  of  the  case  u]>on  a  writ  of  error, 
or  ujion  other  well-established  legal  grounds.  After  sentence 
given,  the  matter  within  these  limits  would  seem  to  be  wholly 
within  the  hands  of  the  executive  officers  of  the  law.  The  sole 
power  is  vested  in  the  governor  "  to  grant  reprieves,  commuta- 
tions and  pardons  after  conviction,  for  all  offenses,  except 
treason  and  cases  of  impeachment,  upon  such  conditions  and 
with  such  restrictions  and  limitations  as  he  may  think 
proper."  Const.,  article  5,  §  6.  And  the  action  of  the  court 
in  the  premises,  after  it  had  regularly  ])ronounced  the  punish- 
ment provided  by  law  for  the  oifense  in  question,  is  clearly 
obnoxious  to  the  objection  that  it  is  an  attempted  exercise  of 
power,  not  judicial,  but  vested  in  the  executive.  When  the 
sentence  was  pronounced,  the  defendant  was  in  custody;  and 
it  became  eo  hmtanti  his  duty  to  pay  his  fine,  and  for  failure 
to  do  so,  the  term  of  his  imprisonment  at  once  began.  It  had 
fully  expired  before  the  order  of  October  12,  1SJ>4,  was  made, 
under  which  he  has  been  committed  and  is  now  being  hehl  in 
confinement.  The  sentence  had  been  in  part  complied  with, 
and  the  attempted  withdrawal  indefinitely  of  the  remainder 
Avas,  we  think,  without  legal  warrant  and  void. 

In  the  case  of  State  v.  Grottkau,  73  Wis.  5S9,  before  execu- 
tion of  a  sentence  of  imprisonment  for  one  year,  a  stay  of 
execution  was  granted  pending  a  writ  of  error;  and,  after 
affirmance  of  the  judgment,  it  was  held  that  the  sentence 
could  be  rightly  enforced,  although  the  year  had  in  the  mean- 
time expired.  The  stay  was  for  a  legal  cause.  Reinex  v.  /State, 
51  Wis.  152.  The  case  of  People  v.  Court  of  Sessions,  141  N.  Y. 
288,  was  not  a  case  where  execution  of  a  sentence  had  been  sus- 
pended, but  where  sentence  had  been  postponed;  and  the  power 


.  '*  ii 


r  serious 
istration 
mvicted, 
)rm  had 
,nd  upon 
le  preni-  ■ 
ercise  of 
end  sen- 
)th  upon 
iution  of 
ustuined, 
of  error, 
sentence 
e  wholly 
The  sole 
jonimuta- 
s,  except 
ions  and 
lay  think 
the  court 
le  punish- 
is  clearly 
cercise  of 
Vhen  the 
tody;  and 
or  failure 
It  had 
vas  made, 
\rr  hehl  in 
lied  with, 
remainder 

)re  exccu- 
,  a  stay  of 
and,  alter 
!  sentence 
the  mean- 
lex  V.  State, 
(,  Ul  N.  Y. 
d  been  sus- 
the  power 


HATHCOCK  V.  STATE. 


ro5 


of  the  court  to  delay  sentence,  in  its  discretion,  was  sustained  and 
numerous  authorities  were  cited  to  support  it.    But  the  pres- 
ent case  involves  different  considerations.    Here  theexecution 
of  a  sentence  already  pronounced  is  indefinitely  suspended,  and 
it  may  be  the  pleasure  of  the  court  never  to  direct  execution, 
so  that  the  suspension  has  the  practical  effect  of  a  pardon,  or 
of  arrest  of  judgment  indeterminate  or  final  without  the  author- 
ity of  law  ;  and  it  has  been  likened  to  the  incorporation  into 
our  criminal  jurisprudence  of  the  "  Ticket  of  Leave  "  system, 
without  any  of  its  safeguards,  leaving  the  convicted  criminal 
subject  to  the  mere  option  or  caprice  of  the  judge,  who  may 
direct  the  enforcement  of  the  sentence  after  any  lapso  of  time, 
however  great,  or  withhold  it,  to  the  great  detriment,  it  may 
be,  of  the  interests  of  the  public — a  power  plainly  liable   to 
great  abuse.    We  think,  therefore,  that  the  circuit  court  had 
no  authority  to  make  the  order  of  October   12,  1894.      As 
already  observed,  the  period  of  imprisonment,  in  contemplation 
of  law,  commenced  March  16,  1894,  when  t"he  defendant  was 
in  custody  and  faile<l  to  pay  the  fine  imposed  against  him,  and 
he  could  not  be  lawfully  imprisoned  after  it  had  expired.    The 
order  of  October  12,  1894,  was  not  merely  erroneous;  in  mak- 
ing it,  the  court  exceeded  its  jurisdiction.     The  pstitioner's 
demurrer  to  the  respondent's  return  must  be  sustained,  and  he 
is  entitled  to  be  discharged   from  custody.    It  is  ordered 
accordingly. 


IlATncocK  V.  State. 


(88  Ga.  91.) 
Swindling  :  Rcpresentatiom  aa  to  wealth— Several  counts— Evidence. 

1.  Representations,  by  a  party  applying  for  credit,  that  he  was  perfectly 

solvent,  and  responsible  for  his  debts,  and  was  good  for  his  obligations, 
are  representations  of  his  respectability  and  wealth,  and,  if  false, 
are  within  section  4587  of  the  Code,  which  declares  that  "  if  any  per- 
son, by  false  representation  of  his  own  respectability,  wealth,  or  mer- 
cantile correspondence  and  connections,  shall  obtain  a  credit,  and 
thereby  defraud  any  person  or  persons  of  any  money,  goods,  chattels, 
or  other  valuable  thing,  •  •  •  such  person  so  offending  shall  be 
deemed  a  cheat  and  swindler." 

2.  Where  the  trial  is  had  at  the  same  time  on  two  counts  in  an  accusation, 

45 


706 


AMERICAN  CRIMINAL  REPORTS. 


a  verdict  of  guilty  on  one  count  alone  is  an  acquittal  on  the  other: 
but  such  acquittal  docs  not  vitiate  the  conviction,  although  both  counts 
may  relate  to  the  same  transaction. 

3.  Whore  goods  are  obtained  by  false  representations  connected  with  true 

ones,  if  the  false  are  separable  from  the  true,  and  are  material,  and  had  a 
material  influence  in  effecting  the  fraud,  they  alone  may  be  alleged  in 
the  indictment  or  accusation,  and  the  conviction  will  be  upheld 
although  other  representations,  not  false,  constituted  a  material  part  of 
the  inducement  on  which  the  prosecutor  gave  the  credit  and  parted 
with  his  goods. 

4.  That  the  accused  had  unlimited  credit  with  another  house  was  not  reU»- 

vant  upon  the  question  of  whether  he  had  misrepresented  his  solvency 
to  the  prosecutor,  and  thereby  defrauded  him. 

5.  Promissory  notes  of  the  accused,  executed  after  the  misrepresentation 

complained  of,  in  renewal  of  debts  existing  before,  were  admissible  in 
evidence  to  show  the  amount  of  his  liabilitiesatthotimehe  represented 
himself  as  solvent. 

6.  Proof  of  good  character  will  not  hinder  conviction  if  the  guilt  of  the  de- 

fendant is  plainl}'  proved  to  the  satisfaction  of  the  jury,  and  so  to  in- 
struct the  jury  is  not  "  gratuitous,  unnecessary,  argumentative  and 
hurtful  to  the  defendant." 

Error  from  City  Court  of  Atlanta;  Howard  Van  Epps, 
Judge. 

Prosecution  against  W.  M.  Ilathcock  for  making  fraudulent 
representations  as  to  his  financial  responsibility.  Verdict  of 
guilty,  and  judgment  thereon.     Defendant  brings  error. 

J.  W.  Longino,  W.  Y.  Atkinson,  Arnold  cfe  Arnold,  and  T. 
W.  Latham,  for  the  plaintiff  in  error. 

F,  M.  O'Bryan^  City  Solicitor,  and  Rosser  (&  Carter,  for  the 
State. 


Simmons,  J.  The  accusation  against  Ilathcock  contained 
two  counts.  The  first  was  that  Ilathcock  was  guilty  of  the 
offense  of  misdemeanor,  *'  in  that  said  Ilathcock,  in  Fulton 
county,  on  or  about  May  23d,  1889,  did,  by  false  and  fraudu- 
lent representations  as  to  his  own  responsibility,  wealth,  and 
commercial  standing,  cheat  and  defraud  A.  P.  Morgan  out  of 
certain  merchandise  to  the  value  of  $921.35,  to-wit :  The  said 
W.  M.  Ilathcock  represented  to  said  Morgan  that  he  (Ilath- 
cock) was  the  owner  of  a  certain  tract  of  land  in  Campbell 
county,  Georgia,  containing  six  hundred  acres,  and  also  was 
the  sole  owner  of  two  certain  mills,  in  his  own  right  and  title, 
and  upon  these  representations  induced  Morgan  to  extend  to 


HATHCOCK  V.  STATE. 


707 


the  othor: 
toth  counti^ 

i  with  true 
,  and  had  a 
alloyed  in 
be  upheld 
'rial  part  ol 
and  parted 

IS  not  reK»- 
is  solvency 

•rosentation 
hnissible  in 
representetl 

It  of  the  de- 

nd  so  to  in- 
itiitive  and 


^an  Epps, 

fraudulent 
V^erclict  of 
rror. 

M,  and  T. 

(er,  for  the 


contained 
ilty  of  the 
in  Fulton 
tid  fraudu- 
k'ealth,  and 
'ffan  out  of 
:    The  said 

he  (Hath- 
1  Campbell 
d  also  was 
it  and  title, 
)  extend  to 


him  credit  for  a  lot  of  corn,  bran,  outs  and  hay  to  the  said 
amountof  8921.35,  wiien  in  truth  and  in  fact  one  of  these  mills 
did  not  belong  to  Ilathcock,  and  he  had  no  title  to  it,  as  he 
represented.  Said  Ilathcock,  by  said  false  and  fraudulent  vc\)- 
resentations,  induced  said  Morgan  to  part  with  his  property  as 
aforesaid,  and  thereby  cheated  and  defrauded  him  out  of  the 
amount  of  $021.35;  said  Ilathcock  knowing  at  the  time  he 
made  said  rcjiresentations  that  they  were  false',  and  were  made 
for  the  purpose  of  cheating  and  defrauding  said  Morgan  as 
aforesaid,  and  did  thereby  cheat  and  defraud  him."  The 
second  count  (omitting  the  formal  ])art)  charged  that  Ilath- 
cock represented  to  Morgan  that  he  was  "  perfectly  solvent 
and  responsible  for  his  debts,  and  was  good  for  his  obligations, 
and  thereby  induced  the  said  Morgan  to  part  with  certain 
merchandise  to  the  value  of  nine  hundred  and  twenty-one  and 
35-100  dollars,  *  *  *  wlien  in  truth  and  in  fact  the  said 
Ilathcock  was  then  and  there  deeply  insolvent,  and  he  knew 
the  same  when  he  made  the  aforesaid  false  and  fraudulent  rep- 
resentations ;  and  said  false  rejjresentations  were  made  foi  the 
l)urposeof  cheating  and  defrauding  the  said  A.  P.  Morgan,  and 
did  thereby  cheat  and  defraud  him,  as  aforesaid.  The  said  A. 
P.  Morgan  was  induced  to  extend  credit  to  the  said  Ilathcock 
upon  his  false  and  frauduhjut  stittements,  believing  at  tlie  time 
that  thev  were  true ;  but  the  said  Ilatlicock,  knowing  that 
they  were  false  and  fraudulent,  made  the  same  for  the  pur- 
]iose  of  cheating  and  defrauding,  and  thereby  did  cheat  and 
defraud,  as  aforesaid,  contrary  to  law,"  etc.  The  defendant 
demurred  to  tlie  second  count  of  the  accusation  on  the  ground 
that  it  set  forth  no  oifense  under  the  laws  of  Georgia.  The 
demurrer  was  overruled,  and  lie  excejited.  A  trial  was  had, 
and  the  defendant  was  convicted  on  the  second  count ;  and  he 
moved  in  arrest  of  judgment  on  the  ground  taken  in  the 
demurrer,  and  also  upon  the  ground  that  "he  had  been 
accjuitted  on  the  first  count,  and,  having  been  so  acquitted,  it 
was  not  lawful  that  he  should  be  convicted  on  the  second 
count,  because  the  charges  therein  made  were  covered  by  the 
charge  in  the  first  count.  If  the  representations  stated  in  the 
second  count  were  made,  they  were  made  at  the  time  of  the 
representations  charged  in  the  first  count ;  and  the  charge  in 
the  second  relates  to  and  is  covered  by  the  transactions  which 
relate  to  and  are  covered  by  the  first  count."    This  motion 


m\ 


70S 


AMERICAN  CRIMINAL  REPORTS. 


I  I 


was  also  overruled.  The  defendant  then  made  a  motion  for  a 
new  trial  on  the  several  grounds  sot  out  in  the  rejjort,  whieh 
was  overruled,  and  ho  oxcejited, 

1.  Counsel  for  the  plaintiff  in  error  contended  that  the  court 
erred  in  overruling  his  demurrer  to  the  second  count  of  the 
accusation,  and  in  refusing  to  arrest  the  judgment  entered 
thereon.  lie  contended  that  the  allegations  in  the  second 
count  wore  not  Sufficient  in  law  to  authorize  a  conviction.  Our 
Code,  section  4587,  provides  that  "  if  any  person  by  false  rej)- 
resentation  of  his  own  resi)ectability,  wealth,  or  mercantile 
correspondence  and  connections,  shall  obtain  a  credit,  and 
thereby  defraud  any  person  or  persons  of  any  money,  goinls, 
chattels,"  etc.,  such  person,  on  conviction,  shall  be  punished, 
etc.  We  think  that  where  one  jierson  falsely  re|)resents  to 
another  that  ho  is  ))erfectly  solvent  and  responsible  for  his 
debts,  and  is  good  for  his  obligations,  and  by  means  of  such 
false  re\)resentations  obtains  a  credit,  and  defrauds  another 
of  goods,  such  false  representations  are  within  tiie  statute.  A 
representation  of  solvency  and  ability  to  pay  debts  is  a  repre- 
sentation, to  a  certain  extent,  of  his  wealth.  It  is  not  neces- 
sary that  ho  should  represent  that  he  is  wealthy  before  he  can 
be  indicted  under  this  section.  A  representation  of  solvency 
is  a  declaration  that  he  has  property  sufficient  to  pay  all  his 
debts,  and  the  one  about  to  be  incurred ;  and  when  ho  adds 
thereto  that  he  is  responsible  for  his  debts,  and  good  for  his 
obligations,  it  emphasizes  the  representation,  and  is  more 
likely  to  deceive  the  creditor.  If  the  representations  thus 
made  are  fraudulent,  and  the  creditor  is  thereby  defrauded, 
the  person  making  them  is  guilt}',  under  this  section  of  the 
Code.  This  is  certainly  in  accordance  with  good  morals, 
sound  principle,  and  right  dealing  between  man  and  man.  A 
man  who  has  defrauded  his  neighbor  by  such  false  representa- 
tions, and  has  obtained  his  goods,  and  refused  to  pay  for  them, 
has  no  right  to  complain  if  ho  is  adjudged  guilty,  and  punisliod 
for  the  fraudulent  act.  Clifford  v.  State,  56  Ind.  245 ;  Covi- 
monwcalth  v.  Wallace.  114  Pa.  St.  405. 

2.  Counsel  for  the  plaintiff  in  error  claimed  that  the  court 
erred  in  not  arresting  the  judgment,  because  the  jury  acquitted 
the  defendant  on  the  first  count ;  and,  it  being  the  same  trans- 
action, he  was  necessarily  acquitted  on  the  second.  He  cites 
on  this  point  lioherts  v.  State,  14  Ga.  8,  and  Blair  v.  State, 


rm' 


HATIICOCK  V.  STATE. 


7<)0 


ion  for  a 
•t,  which 

Lhe  court 
It  of  the 

entered 
B  second 
ion.  Our 
false  rep- 
lercantilo 
edit,  and 
y,  goods, 
punished, 
esents  to 
e  for  his 
3  of  sucli 
I  another 
atute.  A 
s  a  repre- 
lot  neces- 
ire  he  can 

solvency 
ay  all  his 
1  he  adds 
id  for  his 

I  is  more 
ions  thus 
lefrauded, 
on  of  the 

II  morals, 
man.     A 

epresenta- 

for  them, 

punished 

!45;  Com- 

the  court 
acquitted 

ime  trans- 
He  cites 

r  V.  State, 


81  Id.  031 ;  but  it  will  bo  seen  by  rcferoncj  to  those  cases 
that  they  refer  to  separate  and  independent  trials  on 
different  indictments.  Neither  of  the  cases  holds,  whore 
a  person  is  ix-ied  at  one  time  upon  two  counts  of  an  in- 
dictment, an  acquittal  on  one  amounts  to  an  acquittal  on 
the  other.  On  the  contrary,  the  law  is  that  whore  a  trial 
is  had  at  the  same  time  on  two  counts  of  an  imlictinont 
or  accusation,  a  verdict  of  guilty  on  one  count  alone  is  an 
acquittal  on  the  other;  but  such  acquittal  does  not  vitiate  the 
conviction,  although  both  counts  may  relate  to  the  same  trans- 
action. 

3.  It  is  also  contended  that  the  evidence  showed  that  the 
representations  were  all  made  at  the  same  time— that  is,  that 
the  defendant  said  that  he  had  six  hundred  acres  of  land  and 
two  mills,  and  was  perfectly  solvent  and  responsible  for  his 
debts,  and  good  for  his  obligations — and  that  the  prosecutor 
testified  that  he  gave  him  credit  on  the  faith  of  all  the  repre- 
sentations, and  not  one  alone,  and  that,  as  inasmuch  as  the 
jury  had  found  that  the  representations  concerning  the  land 
and  the  mills  were  true,  he  could  not  be  convicted  where  only 
one  of  the  representations  was  false.  We  think  that  where  a 
person  makes  representations  to  another  for  the  jmrpose  of 
obtaining  credit,  and  some  of  the  representations  are  true,  and 
one  of  them  is  false,  and  he  knows  it  to  be  false  at  the  time, 
and  the  false  one  can  be  separated  from  those  that  are  true, 
and  it  materially  influenced  the  mind  of  the  other  party  in 
giving  credit,  the  false  representation  may  be  alleged  alone  in 
a  second  count  of  the  indictment  or  accusation,  and  a  convic- 
tion thereon  will  be  upheld,  although  the  other  representa- 
tions, not  false,  constituted  a  material  part  of  the  inducement 
on  which  the  prosecutor  gave  the  credit  and  parted  with  his 
goods.  On  trials  under  this  statute  it  is  not  necessary,  in 
order  to  sustain  a  conviction,  to  prove  that  all  the  representa- 
tions were  false.  If  it  were  so,  a  conviction  under  the  statute 
could  rarely  be  had,  because  a  person  who  intended  to  defraud 
another  by  false  representations  could  always  mix  enough 
truth  with  the  false  to  prevent  a  conviction.  2  Bish.  Grim. 
L.  §  418;  2  Whart.  Crim.  L.  §  770;  People  v.  Blanchard,  90 
N.  Y.  3U ;  Beasley  v.  State,  59  Ala.  20. 

4  and  5.   The  bill  of  exceptions  states  that  after  the  motion 
in  arrest  of  judgment  was  overruled  the  court  sentenced  the 


710 


AMERICAN  CUIMINAL  UEPOUTS. 


W    I  ■  ■ 


ilcfondiint  to  pay  a  flno  of  $l,Oi)0,  or  to  ho  conlinoJ  in  tlio 
common  jail  of  tlio  county  for  a  porio;!  of  twolvo  montlis. 
Tliis  sontonco  was  oxcoptod  to  on  tlio  ground  that  tlio  jmnisli- 
ment  was  excessive  and  unusual.  In  the  fourth  head-note 
ahove,  we  hoUl  that  where  tlie  fruits  of  a  criminal  fraud 
amounted  to  more  than  i^lKK),  a  fine  of  ^1,000  is  not  an  exces- 
sive or  unusual  ]ninishiiient.  J3ut  while  that  may  be  true  as 
to  the  line  imposed,  the  bill  of  excei)ti(ms  certified  to  by  the 
judge  shows  that  the  sentence  was  in  the  alternative — either 
to  pay  a  fine  of  §il,0()(>,  or  bo  imprisoned  twelve  months  in 
jail.  The  judge,  in  ])assing  sentence  upon  a  criminal  found 
guilty  of  a  misdemeanor,  can,  if  he  chooses,  make  the  sentence 
in  the  alternative;  but  when  he  does  so,  his  discretion  as  to 
imprisonment  is  limited  by  section  4705  of  tho  Code,  which  pre- 
scribes that  punisliuient  in  tho  common  jail  shall  not  exceed  six 
months.  If,  however,  he  sim])ly  puts  a  fine  ujjon  the  criminal, 
it  seems  that  he  can  enforce  the  payment  of  that  fine  by  an  un- 
limited imprisonment  in  jail;  and  in  that  event  tho  imprison- 
ment does  not  discharge  the  fine,  although  tho  judge  or  other 
competent  authority  may  afterwards  release  tho  prisoner  from 
jail.  Brock  v.  State,  22  Ga.  98 ;  MeMeekin  v.  State,  48  Id.  335  ; 
Church  Ilab.  Corp.  §  3(»S;  Fischer  v.  Hayes,  0  Fed.  Ilcp.  71. 
IJut,  inasmuch  as  this  was  an  alternative  sentence,  and  the 
imjmsonment  inflicted  was  not  to  enforce  tho  payment  of  a 
fine,  but  as  a  punishment,  the  court  exceeded  its  powers  in  re- 
spect to  imprisonment  in  jail.  Where  the  imprisonment  is  a 
|)art  of  the  punishmoTit,  and  not  to  enforce  a  fine,  six  months 
in  the  common  jail  is  the  limit.  "Wo  therefore  direct  that  the 
judge  modify  the  imprisonment  part  of  the  sentence  so  as  not 
to  exceed  the  limits  authorized  by  the  statute. 

C.  There  were  other  groumls  taken  in  the  bill  of  exceptions, 
and  in  the  motion  for  a  new  trial,  which  are  fully  covered  by 
the  Gth,  7th,  8th,  9th,  10th,  11th  and  12th  head-notes;  and  wo 
deem  it  unnecessary  to  elaborate  them  further. 

Judgment  allirmed,  with  direction. 


Note.— ir/wtf  constitutes. — It  is  essential  to  constitute  the  offense  of 
swindlinp;  that  the  device,  pretense,  or  representation,  should  not  only 
have  induced  the  prosecutor  to  part  with  his  property,  hut  that  it  should 
have  been  reasonably  calculated  to  produce  that  effect.  Peckham  v. 
State,  Tex.  Crim.  App.  288,  W.  532. 

One  dealing  with  an  illiterat?  person,  writing  a  promissory  note  for  him 


d  in  thu 
months. 
0  punisli- 
K'iul-notu 
al  frauil 
an  oxcus- 
10  true  as 

0  by  the 
c — cither 
lonths  in 
lal  found 

1  sentence 
tion  as  to 
rhich  pre- 
sxceed  six 

criminal, 
by  an  un- 
iinprison- 
e  or  otlier 
oner  from 
■S  Id.  335 ; 
.  Rep.  71. 
),  and  tile 
nient  of  a 
ivers  in  re- 
nment  is  a 
ix  montlis 
3t  that  tlie 
Q  so  as  not 

jxceptions, 
covered  by 
IS ;  and  we 


e  offense  of 
lid  not  only 
lat  it  should 
Peckham,   v. 

note  for  him 


HENDERSON  v.  JAMES. 


711 


to  oxpent-.  insertin!?  therein  an  amount  larffor  tlmn  thiit  stipulntod  for 
falHi'ly  and  fraudulently  roadinK  nvtsr  the  note  as  if  it  contuineil  tlio  true 
amount,  HiRningthe  maker's  name  thereto  at  hLsre(iu.«Ht,  and  also  the  name 
of  an  atteHting  witness,  the  maker  and  the  witness  hoth  Hul»scril)iiiK  with 
their  mark,  commits  the  offense  of  cheating  and  swindling,  hut  dot^,  not 
commit  the  offense  of  forgery.  Cum.  v.  Sankey,  23  I'a.  St.  3U0;  WtlU  v 
State,  m  Oa.  7»«. 


IIenpeuson  v.  James. 

(52  Ohio  St.  242.) 

Terms  of  Impuisonment:  Satin/action  of  sentence— Escape  of  convict— 

Habeas  corpus. 

1.  An  escaped  convict,  who  Is  convicted  and  sentenced  to  the  penitentiary 

for  anotiier  crime,  may,  at  the  expiration  of  the  latter  sentence,  be 
held  to  serve  out  the  remainder  of  his  first  sentence. 

2.  A  final  order  of  discharge  on  habeas  corpus  may  be  reviewed  and 

reversed  on  error  by  a  higher  court. 

3.  In  such  case  the  order  of  discharge  may  be  stayed  by  the  hi;;her  court, 

under  section  6725  Rev.  St.,  without  fixing  any  terms  other  than  the 
stay  of  the  execution  of  the  order. 

Error  to  Circuit  Court,  Franklin  County. 

Application,  upon  the  relation  of  David  Henderson,  against 
one  James,  prison  warden,  for  a  writ  of  habeas  corpus.  Frcm 
a  reversal  I)y  the  circuit  court  of  a  judgment  of  the  court  of 
common  pleas,  discharging  the  prisoner,  relator  brings  error. 
Affirmed. 

On  September  18,  1879,  the  plaintiff  in  error,  David  Hender- 
son, was  received  at  the  penitentiary  to  servo  a  five-year  sen- 
tence from  AVarren  county.  On  October  12,  1881,  after  serv- 
ing a  little  over  two  years  of  that  sentence,  he  escaped  and  was 
at  large  until  March  IG,  1891,  when  he  was  received  at  the 
penitentiary  under  the  name  of  Carrol  Scott,  on  a  five  years 
sentence  from  Cuyahoga  county ;  but  nothing  was  known  by 
the  Cuyahoga  county  court  as  to  the  prisoner's  real  name 
being  David  Henderson,  nor  as  to  his  former  sentence,  nor  as 
to  his  escape.  When  he  reached  the  penitentiary,  he  was 
received  and  put  to  work  as  Carrol  Scott,  without  being 
recognized  as  David  Henderson  by  the  warden.  After  he  had 
been  there  some  time,  registered  and  working  as  Scott,  the  dep- 


T^ 


.(.1 


1 


M 


.  l' 

'   -I    • 

'I 


■f! 


712 


AMERICAN  CRIMINAL  REPORTS. 


uty  warden  roco;;iii/,o<l  him  as  l)oin<;  David  lIend(M's<»ii,  hut  no 
action  was  taken  hy  the  wanhjn  or  any  ono  olso  upon  such 
recognition,  an<l  the  ])risoner  served  out  iiis  sentence  as  Carrol 
Scott,  aiul  was  discharged  July  14,181)4,  The  warden,  haviuf^- 
learned  that  Scott  was  llctderson,  <h)tained  him  as  the  es- 
caped lli'iKhirson,  and  duly  re<ristere(l  hini  as  the  i-eturned  con- 
vict, and  put  him  to  work  to  servts  out  hisuniixpired  sentence. 

Thereupon  David  Henderson  tiled  his  petition  lor  a  writ  of 
habeas  corpus,  the  warden  m.'de  due  return,  and  tlut  |)laintilt' 
niplied.  The  reply  is,  in  ell'ect,  that,  within  a  wisek  alter  he 
was  received  at  the  ptiuitentiary  as  S(!ott,  he  was  rt!(!<»^ni/.ed 
as  tlu!  (iscapcnl  c<nivict,  Henderson,  hy  tin*  deputy  warden,  wh<» 
was  th(!n,  in  the  al)seiu;e  of  the  warden,  in  (!har;^(^  of  the  prison. 
To  this  n^ply  tlu^  wardtMi  deinurretl,  whi(!h  deniuri-iM"  was  over- 
ruled hy  th(!  court  of  common  pleas  of  Franklin  (;<»unty,  an<l 
on  hearing  the  cas(!,  the  prisoner  wasordensd  to  he  (lisehai";^ed. 
E.\c«!ptions  wei'e  takiui  hy  counsel  for  the  wardcjn,  and  on  heai'- 
in<j^  th(!  easd  in  the  circuit  t!ourt,  on  p(;tition  in  error,  the  jud<^- 
nient  of  tin;  court  of  common  pleas,  dischai'<j;in^'  the  prisoniM-, 
was  reversed,  and  the  })rison»!r  rtMuanthMl  to  the  custody  of  tlu^ 
wardtiu  lo  serve  out  his  un(!xpired  sentcMice. 

Thereupon  Mr.  HtMider.son  filed  his  pc^tition  in  error  in  this 
court  to  ri!V(M>e  the  judgnu^it  of  the  cinMiit  coui-t,  and  for  thi! 
alUrmance  of  ihe  judgment  of  the  common  pleas. 

(nnrtjt'  li.  (hdeij  aiul  Janu'N  A.  Allen,  for  jtlainliir  in  error. 
J.  K.  /iifhdnh,  Atty.  (ien.,  for  defendant  in  eiror. 

JJiJUKKT,  J.  (after  stating  the  facts) :  Tin*  latter  part  of  sec- 
tion 7;{25  liev.  St.  provides  that,  "if  any  convict  escapes  from 
the  jMMiitentiary,  *  *  *  no  part  of  the  tinu!  such  convict 
is  absent  shall  he  counted  as  a  part  of  the  time  f(»r  which  such 
convict  was  si^ntenced." 

Tlu!  plaintilfin  error  cUiims  that,  as  his  sentejice  in  Cuyahoga 
county  was  !iot  nuide  to  begin  in  the  future,  that  his  impris(»n- 
niontund<!r  that  sentence  bt^gan  at  once  upon  his  arrival  at  the 
))enitentiary,  and  that,  by  virtue  of  the  above  scuitiun,  his  im- 
prisoninont,  under  the  Warren  county  sentcMU'c,  again  began  to 
run  immediately  u|)on  his  return  to  the  piiuiteniiary,  so  thiit 
both  sentences  wore  being  served  at  the  same  time,  and  that 
upon  the  expiration  of  the  longer  sentence,  he  was  entitled  to 


jm' 


IIKNIJEIWON  V.  JAMES. 


t  I'i 


Ilis  (liscliiu-iro  from  !)()tli  sontciiuMis.  TIi<;ro  was  no  iittcmi)t  to 
invok<3  tli(!  (loctririo  of  ciiiiiulativo  soiiUmicos,  and  tlit-  piisoiicr 
was  sonUiiKU'd  to  livo  years  without  l<nowl(!(l<,M  on  part  of  tlu' 
court,  tluit  lio  was  an  (!sca|»(j(l  convict. 

As  wo  have  no  statute  authoriziiifr  cutmiliitivif  siMitonces 
for  crime,  it  would  seem  at  first  hhish,  that  sueii  senU-nces 
should  not  Im;  permittcid  in  this  state;  l)Ut  tliis  (durt,  with 
tlie  courts  of  most  of  the  other  stat(!s,  as  well  as  Kii;;land,  has 
sustained  cumulative  senttMiccss  witlntut  the  aid  of  ii  statute. 
Wi/UdiiMv.  St<iti\  IK  Ohio  Ht.  4(5;  Plrht  v.  <Sfiitc,  \>2  Ohio  St. 
405  ;  Linir,/  v.  (Jhiuland,  .'54  ( )hio  St.  T)!)!);  IJish.  Cr.  Law,  .^  !).):i  ; 
Hi. I!  II.  UV//V.V,  4  Kurrows,  2575;  IStdtr  i\  Smith,  5  Day  (Conn.), 
175;  Fl'::p<dnrk  i\  r.'ojtlr,  1»S  111.  2t;i>;  Minm  i\  SLalr^^liy  .^[inn. 
•li»S,  5  N.  W.  ;;74;  MHIkv.  (Jo,,,.,  \:\  I'a.  St.  (i;Jl  ;  L'n.^srU  v. 
6Vw.,  7  Ser<,'.  iVi  11.  ISU;  In  r<;  j]/<;C,„'„„'rk, 'U  Wis.  4lt2;  /wVr 
/'.  (J(i,ii..,\\  Mete.  (Mass.)  5S1.  In  T(j.\as,  Indiana  and  Ken- 
tiK'ky,  thecoui'ts  hold  cumulative  sentcnices  unauthorized.  In 
Indiana  thei'(!  isastatutc^  to  the  elfect  that  tlu;  term  of  au'vice 
shall  commence  on  the  day  of  conviction  a,nd  sentence.  Se(! 
I\,:niicilij  n.  Ilomni;!,  74  Ind.  87;  I'l'liire  v.  Stufr,  44  Te.\.  4S() ; 
/fanwiJi'm.  v.  .SV'/Zr,  7  T(!.\.  A  pp.  (\(\\;  liohrr  v.  S/af,;  U  Te.\. 
App.  2<'>2,  and  J<f„,r.s  v.   \V<(i'il,  2  M(!tc.  (Ky.)  271. 

The  f^reat.  weight  of  authority  is  in  favor  of  cumulative  sen- 
tences, and  th»\y  should  he  uplu^ld  on  priticiph-.  The  severe 
punishuuiiits  which  induc^id  jud<,'(!s  toinv(!ntt((chni(aliti(!s toaid 
the  acipiiltal  of  those  on  trial,  on  criminal  charj^'es,  no  lon«fei- 
e.\ist,a,nd  under  o;ir  just  aivl  humane  statut(!s,  tiiose  who  violate 
the  law  should  Ixtduly  punishe<l  for  each  oU'ensi;.  Til<:!iam,C. 
.1.,  in  liiiNs,ll  V.  Cow.,  7  S(!r^r.  A:  li.  4S1>,  well  says:  "  lluttocon- 
sider  th(!  thin<jf  on  principh;  -wluiro  a  man  has  Iweti  .scntcmced 
to  impris(»nmcnt  for  one  oilense,  and  is  afti^rwards  (convicted 
of  another,  what  can  he  so  prop<!r  as  to  mala;  his  imprisonnumt 
for  the  s(!<!on(l  oll'ens)!,  comnusnce  at  the  (!.\|»iration  of  the;  first 
imprisoiimcuit  ^  Would  it  not  he  ahsurd,  to  make  oik;  impris- 
onmc^nt  a  punishiiuint  for  two  olfenses  <  Nay,  the  ahsiirdity 
do(!S  not  end  there',  for  unhiss  imj)risonment  for  tlu;  last 
oifense  is  to  lK^jj;in  when;  the  imprisonment  for  the  first  ends, 
it  would  1)0  impossible,  under  our  system,  to  pimish  the 
olfender,  in  certain  cases,  for  the  last  oll'ense  at  all." 

liutas  there  was  no  attempt  to  impose  a  cumulative  sentence 
in  this  cas(^  it  mi<'ht  ho  said  that  the  doctrine  of  cumulative 


'<  I 


m 


U 
^ 


if 


714 


AMERICAN  CRIMINAL  REPORTS. 


m 


n\ 


sentences  is  not  involved  in  this  case.     It  has  been  argued  at 
length,  and  in  one  phase  of  the  case  it  is  pertinent. 

Had  the  court  known  that  the  prisoner  on  trial  was  the  es- 
caped convict  Henderson,  the  court  might,  on  proper  proof  of 
the  fact,  have  sentenced  him  to  five  years'  service  in  the  peni- 
tentiary, and  ordered  him  to  be  delivered  to  the  wan'^m,  and 
fixed  his  term  of  service  to  begin  at  the  expiration  of  tln"  ^V  , 
ren  county  sentence.  The  power  of  the  court  to  do  1 1 1  .  m  nho 
absence  of  any  statute,  seems  clear  from  the  cases  above  cite»l. 
Again,  had  the  court  known  that  the  prisoner  under  indictment 
in  Cuyahoga  count\',  was  the  escaped  convict  Henderson,  the 
warden  of  the  ])enitentiary  mighi  have  been  notified  and  the 
convict  returned  to  the  penitentiary,  to  serve  out  his  Warren 
county  sentence.  Being  then  in  the  penitentiary  under  a  sen- 
tence from  one  county  and  under  indictment  for  another  crime 
in  anotlier  county,  section  723-1:  liev.  St.  would  have  been 
applicable,  and  under  that  section  he  could  have  been  taken 
from  the  penitentiary  to  Cuyahoga  county,  and  tried  under 
the  indictment  pending  against  him  there,  and,  upon  convic- 
tion, he  could  have  been  sentenced  to  the  penitentiary,  and 
returned  tliereto,  under  section  7238  Rev.  St.,  to  serve  out  the 
full  term  of  both  sentences.  Sections  7234  and  7238  are  as 
follows ; 

"  Sec.  7234.  A  convict  in  the  penitentiary  who  escaped  or 
forfeited  his  I'ecognizance  before  receiving  sentence  for  a  felony 
of  which  he  was  convicted,  or  against  whom  an  indictment  for 
felony  is  pending,  may  bo  removed  to  the  county  in  which 
such  conviction  was  had,  or  such  indictment  is  jvnding,  for 
sentence  or  trial,  upon  the  warrant  of  the  court  of  such  county; 
but  this  section  shall  not  extend  to  the  removal  of  a  convict 
for  life,  except  the  sentence  to  be  imposed,  or  the  indictment 
pending  against  him,  is  for  murder  in  the  first  degree." 

"  Sec.  723S.  If  such  convict  be  acquitted,  he  shall  l^e  forth- 
with returned  by  the  sheriff  to  the  penitentiary,  there  to  serve 
out  the  remainder  of  his  term;  but  if  he  be  sentenced  to  im- 
prisonment in  the  penitentiary,  he  shall  fortiiwith  l>e  returned 
thereto  by  the  sheriff,  and  his  term  of  imprisonment  thereon 
shall  begin  to  run  from  the  expiration  of  the  term  for  which 
lie  was  imj)ris()ned  at  his  removal;  or,  if  he  bo  sentenced  to 
death,  such  sentence  shall  be  executed  as  if  he  were  not  under 
sentence  of  imprisonment  in  the  penitentiary." 


w 


HENDEIiSOX  V.  JAMES. 


7i; 


These  two  sections  clearly  show  the  legislative  intent,  that 
convicts  shall  serve  out  one  sentence  for  each  offense  of  which 
they  are  convicted  and  sentenced.     It  is  therefore  clear,  from 
these  two  sections,  and  the  decisions  of  this  court  sustainino- 
cumulative  sentences,  that  the  service  under  the  Cuyalioo-a 
county  sentence,  could  apply  on  that  sentence  only,  and  that 
after  having  served  out  that  sentence,  he  still  reniiained  an  es- 
caped convict  under  the  Warren  county  sentence,  subject  to  be 
held  to  serve  out  the  remainder  of  that  sentence.     As  he  con- 
cealed his  true  name  and  identity,  and  was  sentenced  b}'  the 
name  of  Scott,  his  term  to  begin  m  jyraescnti,  the  warden  was 
bound  to  receive  and  treat  him  as  designated  in  the  record, 
and  even  had  the  warden  recognized  him  at  first  sight,  as  being 
the  escaped  convict  Henderson,  he  would  have  been  ])()werless 
to  treat  him  as  such,  so  long  as  the  sentence  from  Cuyahoga 
county  remained  in  force  and  unsatisfied.    Both  the  warden 
and  the  prisoner  were  conclusively'  bound  by  the  record  and 
sentence  in  that  case.    While  for  many  purposes  there  is  noth- 
ing in  a  mere  name,  yet  for  many  other  purposes  a  name  is 
very  important.     The  plea  of  abatement  by  reason  of  a  wrong 
name,  and  the  disclosure  of  a  true  name,  is  a  very  valuable 
j)rotection  to  the  prisoner,  as  in  case  of  a  second  prosecution 
for  the  same  crime,  he  can  with  more  force  invoke  the  record 
of  the  lirst  case  in  support  of  his  i)lea  of  former  acquittal  or 
conviction.    Lnsure  v.  State,  10  Ohio  St.  51. 

In  Meadv.  State,  20  Ohio  St.  505,  the  judgment  was  reversed 
on  the  ground  that  Elish  Davidson  and  Elijal'.  B.  Davidson  are 
different  najues,  and  that  the  description  of  a  person  by  one 
of  these  names,  is  not  supported  by  proof  of  a  person  bearing 
the  other  name. 

A  person  allowing  himself  to  be  tried  and  convicted  by  the 
name  mentioned  in  the  indictment,  is  for  the  purpose  of  serv- 
ing out  the  sentence  under  such  conviction,  conclusively  held 
to  be  tlie  person  bearing  such  name,  and  he  can  not  lawfully 
gain  any  advantage  by  concealing  his  true  name  and  iden- 
tity, lla  nuiy  take  his  chances,  as  did  the  plaintiff  in  error, 
and  if  he  succeeds,  well  and  good  for  him ;  but  should  his 
identity  and  true  name  be  discovered  before  his  discharge,  he 
would  be  liable  to  bo  held  as  an  esca])ed  convict  to  serve  out 
his  old  sentence. 


iU 


■I  ' 


J 


716 


AMERICAN  CRIMINAL  REPORTS. 


The  warden,  therefore,  was  right  in  holding  the  prisoner  to 
serve  out  the  remainder  of  his  Warren  county  sentence. 

In  the  next  place  it  is  claimed  that,  having  been  ordered 
discharged  by  the  court  of  common  pleas  on  habeas  corpus, 
such  order  is  conclusive,  and  can  not  be  reviewed  or  reversed 
by  a  higher  court. 

A  proceeding  in  habeas  corpus  is  essentially  a  civil,  and  not 
a  criminal  proceeding.  In  Ex  parte  Tom  Tong,  108  U.  S.  55fi, 
Chief  Justice  Waite  uses    his  language,  on  page  .555) : 

"  The  writ  of  habeas  co  'pus  is  the  remedy  whicii  the  law 
gives  for  the  enforcement  of  the  civil  right  of  personal  liberty. 
Resort  to  it  sometimes  becomes  necessary,  because  of  what 
is  done  to  enforce  laws  for  the  punishment  of  crimes,  but 
the  judicial  proceeding  under  it  is  not  to  inquire  into  the 
criminal  act  which  is  complained  of,  but  into  the  right  to  lib- 
erty notwithstanding  the  act.  Proceedings  to  enforce  civil 
rights  are  civil  proceedings,  and  proceedings  for  the  i)unish- 
ment  of  crimes  are  criminal  procHcdings.  In  the  present 
case  the  petitioner  is  held  under  criminal  process.  The  prose- 
cution against  him  is  a  criminal  prosecution,  but  the  writ  of 
habeas  corpus  which  he  has  obtained  is  not  a  proceeding  in 
that  prosecution.  On  the  contrary,  it  is  a  new  suit  brought 
by  him  to  enforce  a  civil  right,  which  he  claims,  as  against 
those  who  are  holding  him  in  custody,  under  the  criminal  pro- 
cess. *  ■••  *  The  proceeding  is  one  instituted  by  himself 
for  his  liberty,  not  by  the  government  to  punish  him  for  his 
crime.  *  *  *  Such  a  proceeding  on  his  part  is,  in  our 
opinion,  »  civil  proceeding,  notwithstanding  his  object  is,  by 
means  of  it,  to  get  released  from  custody  under  a  criminal 
prosecution." 

When  the  Code  of  Civil  Procedure  was  first  a  lojitod,  sec- 
tion fiO-lr  contained  tlie  provision,  that  until  the  legislatuie 
should  otherwise  provide,  the  Code  should  not  affect  pro- 
ceedings on  habeas  corpus ;  but  it  contained  the  further  pro- 
vision that  such  proceedings  might  be  prosecuted  under  the 
Code,  whenever  applicable;  thus  clearly  recognizing  such  pro- 
ceedings as  a  civil  remedy. 

By  the  revision  of  ISSO,  the  legislature  did  otherwise  pro 
vide,  and  habeas  corpus  became  a  part  of  the  civil  j)rocedure 
statute,  being  chaptei'  8,  tit.  1,  div.  7 ;  and  it  is  classed  with 


-TT|' 


HENDERSON  v.  JAMES. 


717 


actions  for  dower,  partition,  real  actions,  replevin,  ri^lits  and 
remedies  of  sureties,  contest  of  will,  and  some  other  actions. 

That  judgments  and  final  orders  in  the  actions  just  named, 
and  with  which  habeas  corpus  is  classed,  can  be  reviewed  ami 
reversed  by  a  higher  court,  is  too  clear  for  argument.  That  the 
same  can  be  done  in  hal  -^^  corpus  is  settled  by  section  5751 
Rev.  St.,  \/hich  provides  ma,  the  proceedings  up(jn  a  writ  of 
habeas  corpus  may  be  reviewed  on  error  as  in  other  cases. 
This  court,  in  the  case  of  Wilcox  v.  Nolze,  34  Ohio  St.  520,  en- 
tertaininl  a  petition  in  error  to  review  a  proceeding  on  habeas 
corpus  wlien  the  i)laintiff  below  had  been  discharged  by  the 
lower  court. 

It  is  therefore  clear  that  the  rule  found  in  some  cases  to  the 
effect  that  a  discharge  on  habeas  cori)Us,  being  in  favor  of  per 
sonal  liberty,  must  be  regarded  as  final  and  conclusive,  and  not 
subject  to  review  or  reversal  on  error,  does  not  prevail  in  this 
state. 

It  is  also  claimed  that  section  G725  does  not  apply  to  a  judg- 
ment of  discharge  on  habeas  corpus.    That  section  i)rovides : 

"  Execution  of  a  judgment  or  final  order,  other  tlian  those 
enumerated  in  this  chapter,  of  any  judicial  tribunal,  or  the  levy 
or  collection  of  any  tax  or  assessment  therein  litigated,  may 
be  stayed,  on  such  terms  as  may  be  prescribed  by  the  court  in 
whicli  the  petition  in  error  is  filed,  or  by  a  judge  thereof." 

Because  the  circuit  court  stayed  the  execution  of  the  judg- 
ment or  final  order  of  discharge  v.ithout  fixing  any  terms, 
other  than  the  simjile  stay,  it  is  claimed  that  the  above  section 
is  not  ai)plicable  to  such  case,  and  that  there  can  be  no  stay, 
except  on  such  terms  as  may  be  prescribed  by  the  court. 
The  answer  to  this  is  that  the  court  has  ample  power  to  stay 
the  execution  of  the  judgment  or  final  order,  and  it  may  grant 
the  stay  ujjon  such  terms  as  it  sees  fit,  and  if  in  the  opinion 
of  the  court  no  other  terms  than  the  stay  itself  are  reijuired, 
the  stay  may  be  so  granted.  In  the  case  at  liar,  while  no 
terms  were  prescribed  in  the  order  of  stay,  in  fact  the  prisoner 
remained  in  the  custody  of  the  warden  until  the  heai-ing  uf  the 
jwtitiou  in  error.  The  order  of  stay  might  well  iiave  been 
upon  the  terms  that  the  warden  safely  keep  the  -^^risoner  until 
the  final  hearing.  We  tliink,  therefore,  that  section  0725  is 
applicable  to  a  stay  in  habeas  corpus  proceedings. 

We  find  no  error  in  the  record,  and  the  judgment  of  the 
circuit  court  is  therefore  affirmed. 


"'  \ 


718 


AMERICAN  CRIMINAL  REPORTS. 


■  i-! 


Note. —  M'hat  constitutes. — Where  one,  sentenced  to  pay  a  fine  and  to  l;e 
imprisont'd  until  such  fine  is  paid,  in  the  proiwrtion  of  a  day  for  vwvy  dol- 
lar of  the  fine,  is  released  by  the  sheriff  without  authority,  the  term  of  his 
absence  can  not  be  considered  as  spent  in  jail  in  satisfaction  of  the  jud<j;nH'nt. 
Ex  parte  F««ce,  90  Cal.  208,  in  which  case  De  Haven,  J.,  delivering  the 
opinion  of  the  court,  said:  The  jletitioner  claims  his  release  presents  the  sin- 
gle question  whether  his  release  from  jail  under  the  circumstances  here 
stated,  and  thereafter  remaining  at  large  with  f ree andperfect  liberty,  for  a 
Jcngtii  of  time  sufficient  to  have  satisfied  said  judgment  if  he  had  remained 
in  jail,  operate  as  a  complete  execution  of  the  judgment;  and  it  would 
seem  from  the  mere  statement  of  the  proposition  that  the  contention  of  pe- 
titioner on  this  point  can  not  be  sustained.  The  sentence  of  the  court  was 
that  he  pay  a  fine,  and  that  part  of  the  judgment  relating  to  inipris(jnment 
was  merely  incidental  to  the  judgment  of  fine,  and  in  the  nature  of  an 
award  of  execution  directing  the  particular  way  in  which  that  judgment 
sliould  be  enforced  in  the  event  of  the  non-payment  of  the  fine  iminised, 
and  it  seems  clear  to  us  that  such  judgment  can  only  be  satisfied  by  a  com- 
pliance with  its  terms.  In  this  case  it  is  admitttnl  that  the  judgment  of 
fine  has  not  been  paid,  and  th.it  the  defendant  has  not  suffered  the  alterna- 
tive of  actual  imprisonment.  The  judgment,  therefore,  remains  in  full 
force.  The  act  of  the  sheriff  in  releasing  the  petitioner  was  unauthorized, 
and  petitioner's  departure  from  the  jail  to  which  he  had  Iwen  lawfully  com- 
mitted, without  having  been  discharged  by  due  course  of  law,  was  equally 
so,  and  was,  in  effect,  a  technical  escape,  from  which  he  can  derive  no  ad- 
vantage. The  time  of  petitioner's  absence  from  jail,  in  violation  of  law, 
can  not  be  considered  as  having  been  si)ent  in  jail  in  satisfaction  of  tlie  judg- 
ment which  required  his  actual  imprisonment.  This  question,  although 
presented  here  for  the  first  time,  is  not  a  new  one.  In  Re  Edwnnh,  43  N. 
J.  Law  55.1,  the  petitioner  had  been  committed  to  state  prison  for  the  term 
of  ten  yeare,  at  hard  lalwr.  He  m.ide  his  racaiie  and  remained  at  large  for 
seven  yeai-s,  and  he  claimed  that,  notwithstanding  such  fact,  he  was  enti- 
tled to  his  discharge  at  the  end  of  the  term  of  ten  years,  but  the  supreme 
court,  in  an  elalx)rate  opinion,  held  otherwise.  The  same  qu«^tion  came  l)e- 
fore  the  supreme  court  of  Kansas,  in  the  well-considerinl  case  of  Hollon  r. 
Hopkins,  31  Kan.  638.  and  wiw  disposed  of  adversely  to  the  contention  of 
the  petitioner  here.  In  that  case  the  jietitioner  had  l)een  sentenced  U)  the 
state  prison  for  three  years  "  from  the  19th  day  of  Septemln-r,  A.  D.  1874.  " 
On  the  next  day  after  sentence  he  made  his  escape,  and  wjis  not  recajjtured 
until  18T8.  and  he  insisted  that  the  judgment  had  expired  by  its  own  limit- 
ation, but  the  court  held  that  the  essential  part  of  the  judgment  was  that 
l)etitioner  be  imprisoned  for  three  yeara,  and  that  the  time  fixed  by  the 
court  for  its  commencement  wji."  not  such  a  material  part  theret)f  as  to  per- 
mit an  evasion  of  the  juilgnu>nt  by  the  wrongful  act  of  the  prisoner.  The 
court  there  said:  "  The  only  way  of  satisfying  a  judgment  judicially  is  by 
fulfilling  its  recjuirements.  Of  coui"se,  if  Iloilon  had  died,  or  been  i)ardoned, 
the  sentence  would  be  at  an  end.  But,  as  those  things  have  not  lia)ipened, 
and  as  the  sentence  has  not  been  disturbed  by  any  judicial  decision  or 
determination,  there  is  no  way  of  satisfying  itsre<iuirements.  or  of  exhaust- 
ing its  force,  except  service  Ity  Hollon  of  the  time  recpiired  in  tli(>  jieniten- 
tiary."  In  State  v.  Cocker  ham,  2  Ired.  204,  the  defendant  had  been  sen- 
tenced to  be  imprisoned  for  two  months  "  on  and  after  the  first  day  of 


^ 


PEOPLE  V.  MURRAY. 


7lt> 


November  next,"  ami  did  not  go  into  prison  according  to  the  sentonoc,  and  at 
a  subsequent  term  of  the  court  it  was  directed  tliat  the  sentence  sliuuld  be 
immediately  executed,  and  it  was  lield  that  the  order  Wivs  proper,  and  that 
the  essentia?  part  of  the  judgment  was  not  tlie  time  when  it  should  be  ex- 
ecuted, but  the  extent  of  the  punishment  fixed.  So,  also,  in  Di)hiit'H  Cmv, 
101  Mass.  219,  \,)\e.  same  conclusion  was  reached,  the  court  holding  that 
*' expiration  of  time  without  imprisonment  is  in  no  sense  an  execution  of 
the  sentence."  Other  cases  might  be  cited  to  the  same  effect,  and.  indeed, 
our  attention  has  not  been  called  to  the  decision  of  any  appellate  court  hold- 
ing to  the  contrary.  We  are  satisfied  with  the  law  jus  thus  dechired,  A 
convict  is  not  serving  his  sentence  when  away  from  prison  on  parol,  where 
commutation  of  time  is  given  by  statute  for  obedience  to  prison  discipline; 
134  Ind.  439. 

In  England,  a  prisoner  escaping  after  sentence,  and  not  captured  until 
long  after  the  expirition  of  time  fixed  for  execution,  will  then  be  executed. 
Bexv.  Ratcliffe,  18  Hon.  St.  Tr.  439;  Rcxxj.  Harris,  1  Ld.  Raym.  483. 

A  convict,  committed  to  an  insane  asylum  wliile  in  prison,  can  not,  upon 
his  discharge  from  the  asylum,  be  remanded  to  prison,  if,  when  discharged, 
his  term  of  imprisonment  has  expired.    Re  McQuinn,  63  N.  H.  84. 


ii 


People  v.  Mderat. 
(89  Mich.  876.) 


Trial:    Exclusion  of  pvNic — Certiorari— Once  in  jeopardy. 

1.  Under  Const. ,  art.  6,  §  28,  which  declares,  "  In  every  criminal  prosecution, 

the  accuse'  shall  have  the  right  of  a  speedy  and  public  trial,"  and 
How.  Stat.,  §  7244,  which  provides  that  "  the  sittings  of  every  court 
within  this  state  shall  be  public" —  it  was  error  for  the  court,  where 
one  was  on  trial  for  murder,  to  order  the  oflRcers  to  exclude  all  from 
the  court  room  except  "  respectable  citizens." 

2.  Tlie  fact  that  entrance  to  the  court  room  was  possible  through  the  clerk's 

office,  or  other  private  ways,  was  no  answer  to  the  refusal  of  admission 
at  the  public  entrance. 

3.  Such  error  was  properly  broiiglH  to    this  court   by  certioran  rather 

than  by  l)illt»f  exceptions.    Grant,  J.,  dissenting. 

4.  For  su<h  error  the  accusod  will  nit  bL>  disrhfirg»\l  as  having  been  once 

in  jeopardy,  but  a  new  trial  will  he  granted,  and  the  case  treated  as  if 
judgment  had  been  arrested  on  motion  of  accused,  and  the  judgment 
set  aside 


■     i 


Certiorari  to  Eecorder's  Court  of  Detroit ;  F.  II.  Chambers, 

Judge. 

Thomas  Murray  was  convicted  of  murder,  and  brings  cer- 
tiorari. 


720 


AMERICAN  CRIMINAL  REPORTS. 


A.  A.  Ellis,  Attorney -General,  and  S.  W.  Burroughs,  Prose- 
cuting Attorney,  for  the  People. 

Oscar  M.  Springer,  for  the  defendant. 

CiiAMPLiN,  C.  J.  The  respondent  was  convicted  npon  an 
information  charging  him  with  the  murder  of  Edwartl  Shoe- 
maker, in  the  recorder's  court  for  the  city  of  Detroit,  pre- 
sided over  by  the  Hon.  F.  II.  Chambers,  associate  judge, 
and  sentenced  to  be  imprisoned  in  solitary  coiilinement,  at 
hard  labor,  for  life,  in  the  state  prison  at  Jackson,  and  is 
now  undergoing  sentence,  lie  sued  out  a  writ  of  error,  and 
also  a  writ  of  certiorari.  No  bill  of  exceptions  was  settled  or 
signed,  and  the  return  thereto  brings  up  merely  the  record 
of  the  case,  to  and  including  judgment,  in  which  there  ap- 
pears to  be  no  error.  The  writ  of  certiorari  was  based  upon 
the  petition  of  Oscar  M.  Springer,  the  attorney  for  respondent, 
made  and  sworn  to  in  his  behalf,  and  sets  forth  that  the  re- 
spondent was  not  accorded  a  public  trial ;  that  the  public  were 
excluded  from  dav  to  day  from  the  court  room  during  the 
progress  of  defendant's  trial,  as  appears  by  the  affidavits  of 
('harles  Flowers,  William  May,  John  B.  Stadler,  Michael 
McKeogh,  Henry  S.  Self,  Joseph  Boushey, William  C.  Nash  and 
Thomas  M.  Donnelly,  filed  with  said  petition  and  made  a  part 
thereof. 

Thomas  M.  Donnelly's  affidavit  shows  that  he  is  an  at- 
torney at  law;  that  during  the  progress  of  tlio  trial  of 
Thomas  Murray,  charged  with  the  murder  of  Officer  Shoe- 
maker, he  went  to  the  recorder's  court  of  the  city  of  Detroit, 
where  said  case  was  on  trial,  and  attempted  to  enter  the  court 
room;  that  he  was  stopped  in  a  pere'Mptory  manner  by  the 
officer  at  the  door,  who  asked  him  this  question :  "  Have  you 
any  business  here?"  to  which  deponent  replied  that  he  had 
no  particular  business,  except  that  he  wanted  to  hear  what 
wa.i  going  on  at  the  trial;  that  thereupon  the  officer  said  to 
him,  "  The  judge  doesn't  want  to  see  you  ;"  and  shoved  him 
away  from  the  door,  and  closed  the  door  in  his  face;  that  he 
afterwards  gained  admission  to  the  court  room-  through  the 
clerk's  office;  that  on  entering  the  court  room  he  looked  around, 
and  saw  how  many  persons  were  in  the  court  room,  and  accord- 
ing to  his  judgment  there  were  not  to  exceed,  outside  of  the 
officers  of  the  court,  the  police  commissioners  and  policemen. 


w 


PEOPLE  V.  MURRAY. 


21 


a  dozen  persons  in  the  court  room.  The  aiTldavit  of  Charles 
Flowers  shows  that  he  is  an  attorney  at  law  praeticin"-  in 
Detroit;  that  ho  was  of  counsel  for  David  McConnick,  who 
Avas  charged,  with  Thomas  Murray,  with  the  killing  of  OHicer 
Shoemaker,  and  was  present  at  the  greater  part  of  the  trial  of 
said  Murray,  which  continued  about  two  weeks;  that  after 
the  jury  were  sworn,  and  during  the  continuance  of  the  said 
trial,  the  public  were  excluded  from  the  court  room,  an  officer 
being  placed  at  the  door  of  the  court  room,  who  refused 
admission  to  the  general  public;  that  he,  on  several  occasions, 
interceded  with  the  said  officer,  and  sought  to  gain  admis- 
sion for  the  friends  of  deponent  and  others,  known  by 
deponent  to  be  reputable  and  orderly  citizens,  an<l  such  jier- 
mission  was  invariably  refused,  the  said  officer  informing 
Flowers  that  he  had  buen  instructed  by  the  court  to  admit  no 
one  who  had  not  business  in  the  court. 

On  each  of  such  occasions  ho  notice;l  that  the  court  room 
was  comparatively  empty,  the   only  persons  present  being 
about  a  dozen  policemen,  three  or  four  detectives,  several 
police  commissioners,  and  others  apparently  interested  in  the 
conviction  of  defendant;  that  on  one  occasion   he   protested 
against  the  secret  trial  which  was  going  on,  and  asked  the 
court  to  permit  the  public  to  enter;  that  the  court  replied  that 
he  did  not  propose  to  have  the  court  room  crowded  with  peo- 
ple; that  at  the  time  this  protest  was  made,  deponent  counted 
the  number  of  persons  outside  the  bar  of  the  court,  and  that 
there  were  five  persons  only  present,  and  at  the  same  time 
there  were  in  the  hall  at  least  twenty  persons,  nuiny  of  whom 
he  knew  to  be  njputable  citizens,  asking  to  be  admitted;  and 
he  says  that  the  seating  capacity  of  the  court  room  is  at  least 
two  hundred,  and  that  at  no  time  during  the  trial  were  there 
more  than  twenty  persons  in  the  court  room,  outside  of  the 
officers  and  policemen  before  mentioned;  that. he  can  positively 
say  that  he  saw  at  least  fifty  persons  refused  admission;  that 
he'  was  applied  to  by  several  citizens,  and  went  with  them  to 
the  officer  at  the  door,  and  asked  said  officer  to  admit  them; 
that  they  were  friends  of  deponent,  and  had  a  right  to  witness 
the  trial:  and  that  on  each  occasion  admission  was  peremp- 
torily refused. 

The  affidavit  of   William  C.  May  shows  that  he  is  a  citi- 
zen of  the  United  States,  and  a  resident  of  the  city  of  De- 
46 


!     ^ 


722 


AMERICAN  CMMINAL   REPORTS. 


!!• 


troit,  county  of  AVayne,  and  state  of  Michigan;  that  ho 
is  a  deputy  clerk  in  the  office  of  the  county  clerk  for  the 
county  of  Wayne;  that  during  the  progress  of  the  trial  of 
Thomas  Murray,  charged  with  the  murder  of  Officer  Shoe- 
maker, he  endeavored  to  secure  admittance  to  the  recorder's 
court,  where  said  Thomas  ISIurray  was  on  trial  on  the  charge 
aforesaid,  hut  was  stopped  at  the  door  by  a  policeman;  that  he 
had  considerable  difficulty  in  gaining  admission  to  said  court; 
that  he  met  in  the  corridor,  leading  to  the  court  room,  two 
jurymen  of  the  Wayne  circuit  court,  who  stated  that  they 
were  desirous  of  attending  said  trial,- and  had  been  refuseil 
admission  to  said  court  room;  that  before  they  could  get  into 
said  court  he  had  to  obtain  permission  of  the  judge,  although 
the  benches  in  the  court  room  provided  for  the  public  wei-e 
practically  vacant;  that  the  officer  at  the  door  of  said  court 
informed  liim  that  the  general  public  was  not  allowed  admis- 
sion to  the  court;  that  he  saw  a  number  of  persons  standing 
around  the  corridor  leading  to  the  court  who  had  apparently 
been  denied  admission. 

John  B.  Stadler,  in  his  affidavit,  says  that  he  is  a  resi- 
dent of  the  city  of  Dotroit;  that  he  attended  the  trial  of 
Thomas  Murray,  charged  with  the  killing  of  Officer  Shoe- 
maker; that  he  had  difficulty  in  getting  into  the  court 
room,  and  would  not  have  been  admitted  had  it  not  been 
for  the  intervention  of  the  i)rosecuting  attorney;  tliat  during 
the  trial,  which  lasted  for  nearly  two  weeks,  he  k  ows  that 
the  public  generally  was  excluded  from  the  court  room;  tliut 
he  has  seen  a  number  of  persons,  from  day  to  day,  trying  to 
gain  admission  to  the  court  room,  and  who  were  not  admitted 
by  the  officer,  although  there  was  plenty  of  seating  capacity 
in  the  court  room  for  spectators  and  the  public;  that  on  one 
occasion  he  remembers  having  seen  persons  trying  to  gain  ad- 
mission, and  they  were  refused  by  the  officer  at  the  door,  and 
knows  that  there  were  not  to  exceed  five  or  six  ])ersons  sitting 
on  the  benches  provided  for  the  public;  that  he  has  seen 
the  hall  leading  to  the  court  full  of  people  who  were  ex- 
cluded from  the  court  room,  although  the  benches  provided 
for  the  public  inside  were  practicalh'^  vacant. 

Michael  McKeogh's  affidavit  shows  that  he  is  a  citizen  of  the 
United  States,  and  a  resident  of  the  city  of  Detroit;  that  he  at- 
tempted to  gain  admission  to  the  court  room  for  the  purpose 


'n 


PEOPLE  V.  MURRAY. 


723 


of  witnessing  and  hearing  the  trial;  tliat  lio  was  stopped  in  a 
peremptory  manner  by  a  police  ofHcer  stationed  at  the  d(M»r, 
and  informed  that  he  could  not  go  in;  tluit  ho  had  an  oppor- 
tunity of  seeing  into  the  court  room,  and  can  positively  say 
that  the  benches  provided  for  the  public  were  practically 
vacant. 

Henry  S.  Self  says  that  during  the  progress  of  the  trial 
lie  made  ai)plication,  on  two  different  occasions,  for  ad- 
mission to  the  court,  on  both  of  which  there  was  an  officer 
stationed  at  the  door  of  the  court  room  where  ]\[urray  was  on 
trial,  and  he  was  refused  admission  by  the  officer  at  the  door; 
that  on  both  occasions  he  saw  a  number  of  persons  trying  to 
gain  admission,  who  were  refused  in  a  peremptory  manner  by 
the  ofHcer  at  the  door,  notwithstanding  tlie  fact  that  the 
benches  in  the  court  room  provided  for  the  ])ublic  were  prac- 
tically vacant. 

Jose]>h  IJoushey  swears  that  he  is  a  resident  of  the  city 
of  Detroit,  and  a  citizen  of  the  United  States,  and  has 
lived  in  tlie  city  of  Detroit  for  a  number  of  years;  that  on 
the  22d  and  23d  of  April,  during  the  trial  of  Thomas  Murray, 
he  applied  for  admission  to  the  court,  and  was  peremptorily 
refused,  although  there  were  very  few  people  in  the  court 
room;  that  on  the  22d  day  of  April  he  stood  around  the  cor- 
ridor leading  to  the  court  room  from  nine  o'clock  in  the  morn- 
ing until  twelve  at  noon,  and  that  during  that  time  he  saw  at 
least  fifty  persons  try  to  gain  admission,  who  were  refused  ad- 
mission to  said  court  room;  that  he  is  able  to  say,  positively, 
that  there  were  not,  on  that  day,  to  exceed  a  half  dozen  per- 
sons sitting  in  the  benches  of  said  court  room  on  the  north  side 
thereof;  and  again,  on  the  23d  of  April,  he  was  in  the  corridor 
leading  to  said  court  room,  and  saw  at  least  fifty  persons  who 
were  jieremptorily  refused  admission  by  the  police  officer 
stationed  at  the  door,  there  being  not  to  exceed  a  half  dozen 
Morsons  sitting  upon  the  benches  in  the  court  room. 

W.  C.  Nash  swears  that  he  is  a  resident  of  the  city  of  Detroit, 
and  that  he  made  application  for  admission  to  the  court  room 
during  the  progress  of  the  trial  of  Thomas  Murray,  charged 
with  Sie  murder  of  Officer  Shoemaker;  that  he  was  peremptorily 
refused  admission  by  the  police  officer  stationed  at  the  door  of 
Sfiid  court;  that  he  had  an  opportunity  to  see  into  the  court 
room,  and  knows  that  the  benches  on  the  north  side  of  said 


1  k 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


A. 


1.0 


1.1 


■tt  lU   12.2 
!lf  li£   12.0 


■miu 

11.25  |I4   1 1.6 

ISSS^^^BSS       IIHI^^B^^^B*      ^m^^^^^B 


6" 


Photographic 

ScMioes 

Carporation 


13  MIST  MAM  STRHT 

WnSTn,N.Y.  U5M 

(71*)  •72-4503 


4^ 


i 


721 


AMERICAN  CRIMINAL  REPORTS. 


court  room,  provided  forthe  public,  were  practically  vacant; 
and  that  at  the  time  he  made  application  for  admission  to  said 
court  he  saw  a  number  of  persons  in  the  corridor  leading  to 
said  court  who  apparently  desired  to  get  in,  but  were  not  per- 
mitted to  do  so  by  the  oiflcer  at  the  door. 

To  the  writ  of  certiorari  the  presiding  judge  returns  as 
follows :  "  I  hereby  certify  and  return  that  the  following 
statement  of  what  occurred  is  a  true  and  correct  statement  of 
all  that  occurred,  within  my  knowledge,  during  the  said  trial, 
while  court  was  in  regular  session,  in  reference  to  the  exclu- 
sion of  the  public  from  the  court  room,  as  appears  from  the 
stenogra])hic  minutes : 

"  Mr.  Springer :  '  My  attention  has  been  called  to  the  fact 
that  a  large  number  of  respectable  citizens  and  tax  payers  have 
been  excluded  from  the  court  room  by  the  officer,  who  does  not 
seem  to  be  able  to  exercise  any  discretion  Avhatever  in  that  re- 
spect, and  the  talk  around  town  is  that  this  trial  is  a  sort  of  a 
star-chamber  proceeding.'  The  Court:  '  You  don't  think  so  ? ' 
Mr.  Springer:  'I  don't  know,  your  honor.  I  don't  know 
who  has  been  excluded  or  who  has  not,  but,  for  the  sake  of 
saving  the  point,  I  desire  an  exception  to  be  entered  on  the 
record.'  The  Court :  '  I  can  not  give  you  an  exc(  ption  to 
that.  That  is  not  in  the  order  of  trial.  That  is  not  the  way 
to  get  it.  There  is  nothing  before  the  court  on  that  subject. 
I  want  to  say  this :  The  orders  to  the  officer  were  that  he 
should  stand  at  the  door,  and  see  that  the  room  is  not  over- 
crowded, but  that  all  respectable  citizens  be  admitted  and 
have  an  opportunity  to  get  in  when  they  shall  apply.'  Mr. 
J^inger :  '  If  your  honor  please,  I  understand—'  The  Court: 
'  If  you  can  make  any  capital  out  of  that,  you  can  nuike  it.' 
Mr.  Springer :  '  I  am  not  trying  to  make  any  capital  out  of 
it.'  The  Court:  'It  looks  like  it.'  Mr.  Sjwinger:  'In 
order  to  determine  whether  or  not  these  things  have  been  done, 
I  think  it  would  be  well  to  call  the  officer  to  the  stand  to  tes- 
tify to  what  he  has  done.'  The  Court :  '  Vou  propose  to  stop 
the  trial  now.  and  introduce  extraneous  matter.  I  do  not  pro- 
pose to.'  Mr.  Springer :  '  Your  honor,  then  I  Avill  take  an 
exception  to  that.'  The  Court :  '  The  officer  has  got  his 
orders,  and  they  are  in  accordance  with  the  Jaw,  as  I  take  it, 
and,  if  you  have  any  objection,  you  will  have  to  take  it  in  some 
other  way  than  by  exception.    Proceed  with  the  trial.' 


PEOPLE  V.  MURRAY. 


i)l.i 


"  An«l  I  hevehy  further  certify  and  return  that  no  order  was 
ever  made  by  me  at  or  during  the  said  trial,  excluding  any  })er- 
son  or  persons  from  the  court  room  during  the  said  trial;  that 
the  said  trial  was  at  all  times  during  the  same,  a  public  trial, 
within  the  meaning  of  the  constitution;  that  the  said  court 
was  every  morning,  while  the  same  was  had,  regularly 
opened  by  an  officer  thereof,  duly  authorized,  and  declared 
open  for  the  hearing  and  trial  of  causes,  and  there  were  sev- 
eral places  of  ingress  and  egress  Jiccessible  to  persons  wishing 
to  visit  the  said  court  at  all  times,  and  there  were  always 
present  during  said  trial,  several  persons,  and  at  most  times  a 
very  large  assembly  of  persons,  apparently  listening  to  the 
trial." 

"VVe  can  not  accept  the  conclusion  of  the  judge,  "  that  the 
Slid  trial  was,  at  all  times  during  the  same  a  public  trial,  within 
t'.ie  meaning  of  the  constitution."  The  first  clause  of  section 
28  of  article  6  of  the  constitution,  reads  as  follows : 

"  In  every  criminal  prosecution,  the  accused  shall  have  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jury." 

The  right  to  a  public  trial  is  one  of  the  most  important  safe- 
guards in  the  prosecution  of  persons  accused  of  crime.  In 
tliis  case,  when  the  accused  is  upon  trial  for  a  crime,  for 
which,  if  convicted,  his  punishment  is  that  he  must  suffer  a  life 
imprisonment — a  civil  death — an  order  is  made  by  the  court 
which  violates  the  constitutional  right  of  the  accused  and  the 
statute  enacted  to  protect  the  rights  of  parties  in  both  civil 
and  criminal  c.ises.  The  right  of  the  accused  to  a  public  trial 
is  included  in  the  same  section  of  the  constitution  with  the 
right  to  a  trial  by  an  impartial  jury  of  twelve  men;  to  be 
informed  of  the  nature  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory  process 
for  obtaining  witnesses  in  his  favor;  and  to  have  the  assist- 
ance of  counsel  for  his  defense.  It  is  not  necessary  to  review 
the  history  of  the  administration  of  the  criminal  law  in 
Eno-land,  or  to  call  attention  to  the  abuses  in  its  administra- 
tion, to  show  the  reason  why  these  imjwrtant  provisions 
were  inserted  in  our  constitution,  which,  in  this  resjKict,  is  but 
a  reflection  of  similar  provisions  contained  in  all  of  the  con- 
stitutions of  the  American  states  and  of  the  United  States. 
They  are  each  and  all  enacted  for  the  protection  of  rights  of 
persons  accused  of  criminal  offenses,  and  each  is  a  constant 


726 


AMERICAN  CRIMINAL  REPORTS. 


memorial  of  the  great  abuses  practiced  in  England  at  one 
time  and  another  prior  to  the  American  Ee volution,  in  con- 
ducting criminal  prosecutions.  In  Hill  v.  People,  16  Mich. 
351,  it  was  held  that  the  accused  person  could  not  waive  his 
constitutional  right  to  a  trial  by  jury  of  twelve  men,  guar- 
anteed to  him  under  this  section  of  the  constitution,  and  it 
was  said  by  the  court  that — 

"  It  is  the  duty  of  courts  to  see  that  the  constitutional  rights 
of  the  defendant  in  a  criminal  case  shall  not  be  violated." 

In  this  case  it  is  apparent  that  the  constitutional  rights  of 
Murray  were  violated  in  the  order  of  the  court  to  the  police 
officer  stationed  at  the  door  of  the  court-room — 

"  That  he  should  stand  at  the  door,  and  see  that  the  room 
is  not  overcrowded,  but  that  all  respectable  citizens  be  ad- 
mitted and  have  an  opportunity  to  get  in  when  they  shall 
apply." 

It  is  shown  beyond  question  that  during  the  whole  trial  the 
court-room  was  not  overcrowded,  nor  were  the  seats  provided 
for  spectators  occupied  to  any  great  extent.  This  officer  Avas 
under  the  control  of  the  court,  and  when  the  court  was  in- 
formed that  he  was  excluding  citizens  and  taxpayers  he  refused 
to  take  any  notice  of  the  complaint,  and  left  the  officer  to  exer- 
cise his  discretion  as  to  what  respectable  citizens  he  should 
admit.  Is  respectability  of  the  citizen  who  desires  to  witness 
a  trial  to  be  made  a  test  of  the  right  of  access  to  a  public  trial, 
and  is  that  test  to  be  left  to  the  knowledge  or  discretion  of  a 
police  officer  ?  Must  a  citizen  who  wishes  to  witness  the  trial 
of  a  person  accused,  whether  he  be  a  friend,  an  acquaintance  or 
a  stranger  to  the  accused,  present  to  the  police  officer  stationed 
at  the  door  of  the  Temple  of  Justice  a  certificate  of  his  respec- 
tability ?  If  so,  by  whom  shall  it  be  certified  ?  By  the  mayor, 
the  chief  of  police,  or  police  commissioners,  or  by  his  pastor 
or  clergyman  ?  Neither  the  constitution  nor  the  law  requires 
any  such  preposterous  condition  to  the  admission  of  a  citizen 
to  attend  and  witness  a  trial,  either  civil  or  criminal. 

The  order  of  the  court  stationing  the  policeman  at  the  door, 
with  directions  to  admit  none  but  respectable  citizens,  was  not 
only  a  violation  of  the  constitution,  but  it  was  a  direct  violation 
of  public  statutes  of  this  state.  Section  7244  of  Howell's  Stat- 
utes enacts :  "  The  sittings  of  every  court  within  this  state 
shall  be  public,  and  every  citizen  may  freely  attend  the  same." 


»wi  '. '.  ii'p»r'yw«>!g>?- 


'm- 


PEOPLE  V.  MURRAY. 


72( 


I  same. 


Tliis  statute  has  boen  in  force  since  1840.    It  voices  the  senti- 
ment of  the  people  at  the  time  the  constitution  of  1850  was 
adopted.     It  gives  expression  to  what  is  there  meant  by  a 
public  trial.    Courts  have  no  dispensing  ])ower  when  the  leo-is- 
lature  has  spoken.    The  judge  who  presided  at  the  trial  of 
this  case  was  as  much  bound  by  this  provision  of  law  as  the 
humblest  citizen.    The  trial  may  have  been  an  impartial  one ; 
the  respondent  may  have  been  justly  convicted;  but  it  still 
remains  that  it  was  accomplished  in  violation  of  his  constitu- 
tional and  statutory  right  to  a  public  trial.    Edmund  Burke 
never  expressed  a  more  important  truth,  than  when  sjjeaking 
respecting  the  suspension  of  habeas  corpus  at  the  time  of  the 
American  Revolution,   he  said :  "  It    is  the  obnoxious  and 
suspected  who  want  the  protection  of  the  law."     Courts  of 
final  resort  can  not  consider  the  question  whether  the  respond- 
ent was  justly  convicted  or  not  in  passing  upon  questions  of 
law  presented  for  their  consideration.     It  is  for  the  protection 
of  all  persons  accused  of  crime — the  innocently  accused  that 
they  may  not  become  the  victim  of  an  unjust  ])rosecution,  as 
well  as  the  guilty,  that  they  may  be  awarded  a  fair  trial—  that 
one  rule  must  be  observed  and  applied  to  all. 

Since  the  case  was  submitted  we  have  been  furnished  with 
a  brief  by  Allen  H.  Fraser,  in  behalf  of  the  people,  who  is  the 
prosecuting  attorney  who  secured  the  conviction  of  Murray. 
The  position  taken  by  the  learned  prosecutor  in  support  of  the 
conviction  of  Murray  is—Fl/'nt,  that  the  fact  that  Murray  was 
not  awarded  a  public  trial  can  not  be  raised  or  adjudicated  upon 
cevtiomri;  and,  second,  that  he  did  have  a  public  trial,  within 
the  meaning  of  section  28,  art.  6,  of  the  constitution. 

We  do  not  think  that  the  errors  brought  up  by  the  writ  of 
certiorari  could  have  been  reached  by  a  writ  of  error.  Many 
facts  which  are  shown  in  the  atfidavits  and  petition  for  the 
writ  would  not  appear  in  the  return  to  a  writ  of  error  or  in  a 
bill  of  exceptions.  The  bill  of  exceptions  only  brings  up  such 
facts  as  appear  in  the  course  of  the  trial  in  the  presence  of  the 
court.  And  during  the  trial  in  this  case  the  court  plainly  told 
the  counsel  for  the  accused  that  he  could  not  raise  the  question 
in  the  way  in  which  he  was  seeking  to  do  it,  and  charged  him 
with  an  effort  to  make  capital  out  of  his  objections.  The  bill 
of  exceptions  would  not  have  shown  that  the  court  room  was 
not  crowded:  that  most  of  the  seats  provided  for  spectators 


m 


728 


AMERICAN  CRIMINAL  REPORTS. 


were  vacant;  that  many  different  persons,  and  the  particular 
persons  showing  themselves  to  be  citizens  of  the  state,  had  ap- 
plied for  admission,  and  had  been  refused;  none  of  these  things 
could  have  appeared  in  the  bill  of  exceptions.  We  think  that 
they  were  properly  raised  and  brought  before  the  court  by 
the  writ  of  certiorari. 

Three  authorities  are  cited  in  support  of  the  action  of  the 
judge.  Ono  is  the  case  of  State  v.  Uroohs,  92  Mo.  573.  In 
that  case,  in  the  opinion  handed  down  by  the  supremo  court, 
it  was  said  that  an  objection  was  taken  that  the  defendant  did 
not  have  a  public  trial,  and  the  court  said :  "  This  claim  is 
based  upon  the  fact  that  during  the  early  stages  of  impaneling 
the  jury  two  men  were  stationed,  on  the  afternoon  of  one  day 
and  the  forenoon  of  the  next  day,  at  the  door  of  the  court- 
room, who  refused  to  admit  any  one  into  the  court  room  excej)t 
jurors,  witnesses  or  officers  of  the  court,  or  those  having  busi- 
ness in  court.  It  appears  that,  when  this  matter  was  brought 
to  the  attention  of  the  court,  the  court  stated  that  no  order 
had  been  made  stationing  men  at  said  door,  and  announced 
that  anv  one  who  wished  to  come  into  the  court  room  could 
do  so,  and  made  an  order  that  all  persons  be  admitted  until  the 
seats  were  filled.  Had  the  court  either  refused  to  make  such  an 
order,  or  if,  after  making  it,  had  refused  a  request  on  the  part 
of  the  defendant  that  jurors  examined  touching  their  qualifi- 
cations while  the  men  were  stati*^  ed  at  the  door  should  bo 
re-examined,  this  might  have  affoiuod  some  ground  for  the 
complaint  made;  but  no  such  request  was  made."  This  is  not 
in  any  respect  a  parallel  case  to  the  one  under  consideration. 

In  the  Brooks  case  the  exclusion  of  the  public  only  con- 
tinued through  the  afternoon  of  one  day  and  the  forenoon  of 
the  next.  In  Murray's  case  it  lasted  during  the  entire  trial  of 
I  wo  weeks.  In  the  Brooks  case,  when  the  matter  wt'.s  called 
to  the  attention  of  the  court,  the  court  stated  that  no  order 
had  been  made  stationing  a  man  at  the  door,  and  announced 
that  any  one  who  wished  to  come  into  the  court  room  could 
do  so,  and  made  an  order  that  all  i)ersons  be  admitted  until 
the  seats  were  filled.  In  Murray's  case  the  court  made  the 
order  stationing  the  policeman  at  the  door  to  see  that  all  re- 
spectable citizens  be  admitted.  His  attention  was  called  to 
the  fact  that  respectable  citizens  and  taxpayers  were  refused 
admission,  and  instead  of  making  an  order  that  all  citizens  be 


^^HBBES 


^p^ 


PEOPLE  V.  MURRAY. 


729 


aclmitted  until  the  room  was  filled;  he  said  that  "  the  ofhcer 
has  got  his  orders,  and  they  are  in  accordance  with  the  law, 
as  I  take  it,  and  if  you  have  any  ol)j(;ction  you  will  have  to 
take  it  in  some  other  way  than  hv  exception.  Proceed  with 
the  trial." 

The  judge's  position  in  Murray's  case  finds  no  support 
whatever  in  the  Urooks  case.  AVe  are  also  cited  to  the  case 
of  People  V.  Kerrigan,  73  Cal.  223.  In  that  case  tiie  dolond- 
ant  was  convicted  of  an  assault  with  intent  to  commit  murder. 
The  defenses  interposed  at  the  trial  were,  "  not  guilty," 
and  "  insanity."  During  the  progress  of  the  trial  in  tite  court 
below  defendant  became  greatly  excited,  and  indulged  in 
profane  and  abusive  language,  addressed  to  the  court  and 
other  officers  of  the  court.  Her  conduct  created  so  much 
commotion  among  the  spectators  that  the  trial  was  seriously 
interrupted,  and  the  court  found  it  necessary  to  make  an 
order  excluding  spectators  from  tlie  court  room.  In  decid- 
ing the  case  the  court  said :  "  The  appellant  claims  tliat  she 
was  deprived  of  the  constitutional  right  of  a  public  trial,  bv 
the  making  and  enforcemcmt  of  this  order.  Tlieie  is  some 
controversy  as  to  the  scope  of  the  order — which  Avas  not 
entered  in  the  minutes — but  the  judge  certilies  that  the 
order  was  '  that  the  lobby  outside  of  the  court  room  should  be 
cleared  of  spectators,  as  their  presence  tended  to  irritate  and 
excite  the  defendant,  and  that  no  persons  except  officers  of  the 
court,  reporters  of  the  public  press,  friends  of  the  defendant, 
and  ])ersons  necessary  for  her  to  have  on  said  trial  should  bo 
allowed  to  remain.'  It  appears,  further,  from  the  statement 
of  the  judge,  that  no  order  was  nuule  requiring  the  doors  to 
b3  closed;  that  in  fact  the  friends  of  the  defendant  and  re- 
porters were  permitted  to  come  and  go  at  will;  that  the  order 
was  made  by  the  court  on  behalf  of  the  defendant,  as  Avell  as 
to  preserve  order,  because  the  attendance  and  conduct  of  a 
large  crowd  of  spectators  evidently  tended  to  excite  the  de- 
fendant; and  it  is  apparent  from  the  affidavits  showing  the  con- 
duct of  the  defendant  and  many  of  the  spectators  that  such 
was  ;he  fact.  In  our  opinion,  the  order  and  action  of  the 
court,  as  shown  by  the  bill  of  exceptions,  were  not  in  violation 
of  the  defendant's  right  to  a  public  trial.  It  was  proper,  we 
think,  under  the  circumstances,  to  exclude  .om  the  court- 
room those  who  were  excluded,  not  only  bocauso  of  the  vuU 


,>  I 


;i  il 


II 


i  'i. 


V    i 


730 


AMERICAN  CRIMINAL  REPORTS. 


gar  and  profane  language  of  the  defendant  herself,  but  such 
action  was  evidently  necessary  to  protect  the  court  from 
indignity  and  indecorum.  No  actual  injury  to  the  defendant 
is  shown.  It  is  not  shown  that  any  person  who  could  have 
been  of  any  service  to  the  defendant  on  her  trial  was  excluded. 
While  it  is  very  important  that  all  the  rights  guaranteed  by 
the  constitution  to  a  person  charged  with  crime  should  be 
fully  and  fairly  awarded  to  him,  it  is  also  important  that  the 
courts  of  justice  should  be  upheld  in  the  enforcement  of  all 
necessary  and  reasonable  rules  for  the  orderly,  speedy,  and 
effective  conduct  of  their  duties."  Neither  is  this  case  an 
authority  for  what  was  done  in  Murray's  case.  The  court 
did  not  order  the  court- room  to  be  cleared  of  spectators,  but 
the  lobbv  outside.  There  is  nothing  in  the  facts  of  that  case 
which  assimilates  in  any  degree  to  the  trial  of  Murraj'.  Here 
no  violence  is  shown,  no  disorderly  conduct,  no  violent  or  dis- 
graceful action  on  the  part  of  Murray,  which  tended  to  lessen 
the  dignity  of  the  court,  or  bring  the  administration  of  justice 
into  disrepute. 

I  can  not  accede  to  the  correctness  of  the  proposition  inti- 
mated in  that  case,  that  if  a  public  trial  has  not  been  accorded 
to  the  accused,  the  burden  is  upon  him  to  show  that  actual 
injury  has  been  suffered  by  a  deprivation  of  his  constitu- 
tional right.  On  the  contrary,  when  he  shows  that  his  con- 
stitutional right  has  been  violated,  the  law  conclusively  pre- 
sumes that  he  has  suffered  an  actual  injury.  I  go  further,  and 
say  that  the  whole  body  politic  suffers  an  actual  injury  when 
a  constitutional  safeguard  erected  to  protect  the  rights  of 
citizens  has  been  violated  in  the  person  of  the  humblest  or 
meanest  citizen  of  the  state.  The  constitution  does  not  stop 
to  inquire  of  what  the  person  has  been  accused  or  what  crime 
he  has  perpetrated;  but  it  accords  to  all,  without  question, 
a  fair,  impartial  and  public  trial.  There  is  no  such  limitation 
in  the  constitution,  nor  in  our  statute  above  quoted,  from 
which  it  can  be  inferred  "  that  the  requirement  is  fairly  ob- 
served, if  without  partiality  or  favoritism  a  reasonable  propor- 
tion of  the  public  is  suffered  to  attend,  notwithstanding  that 
those  whose  presence  would  be  of  no  service  to  the  accused,  and 
who  would  only  be  drawn  hither  by  a  puerile  curiosity,  would 
be  excluded  altogether."  Who  is  to  decide  who  are  the  friends 
of  the  accused  ?    The  law  makes  no  such  test,  but  allows  all 


■^— T^wf 


|.  -a   « 


PEOPLE  V.  MURRAY. 


781 


citizens  freely  to  attend  upon  any  trial,  wliotlier  civil  or  crim- 
inal. Instances  have  been  referred  lo  by  Judjre  Cooley,  in  his 
work  upon  Constitutional  Limitations,  at  i)a;re  2S()  (star  jmgo 
312),  where,  under  certain  circumstances,  it  mifrht  be  proi^^r 
to  exclude  a  certain  portion  of  the  cummunity  Trom  attending 
trials  which  would  tend  to  degrade  public  morals,  or  would 
shock  public  decency,  in  which  he  says  that  at  least' the  young 
should  be  excluded.  There  can  be  no  objection  to  this  so  long 
as  citizens  of  the  state  who  have  arrived  at  t'.ie  years  of  dis- 
cretion and  manhood  are  permitted  to  enter  freelv.  The 
learned  commentator  lays  it  down  that "  the  recjuirem'ent  of  a 
public  trial  is  for  the  benefit  of  the  accused,  that  the  public  may 
see  he  is  fairly  dealt  with,  and  not  unjustly  condemned,  and 
that  the  ])resence  of  interested  spectators  may  keep  his  triers 
keenly  alive  to  a  sense  of  their  responsibility  and  to  the  im- 
portance of  their  functions." 

It  is  also  urged  that  in  this  case  the  prisoner  was  accorded  a 
public  trial,  for  the  reason  that  there  were  several  other  wavs 
of  obtaining  ingress  to  the  court-room  than  that  in  which  the 
public  generally  entered.  The  learned  judge  returns  to  the 
writ  of  certiorari  "  that  there  were  several  places  for  ingress 
and  egress  accessible  to  ])ersons  wishing  to  visit  the  said  court 
at  all  times."  IJut  this  is  a  mere  subterfuge.  There  was  a 
public  entrance,  at  which  the  public  applied  for  admission  and 
were  refused;  it  is  shown  by  the  affidavits,  or  one  of  them, 
that  one  of  the  persons,  knowing  of  the  private  entrance 
through  the  clerk's  office,  entered  in  that  manner,  after  being 
refused  admission  at  the  public  entrance.  It  is  not  usual  for 
the  public  to  pass  through  these  private  entrances  into  the 
court-room,  and  it  is  no  answer  for  the  court  to  say  that,  al- 
though he  stationed  a  policeman  at  the  door  of  the  public 
entrance,  there  were  other  ways  of  ingress  to  ])ersons  who 
wished  to  gain  admission,  We  have  no  hesitation  in  saying 
that  the  ])risoner  was  denied  the  right  of  a  public  trial,  and  the 
proceedings  in  consequence  must  be  declared  a  mistrial,  and 
his  conviction  must  be  set  aside  and  a  new  trial  must  be  had. 
We  are  asked  to  discharge  the  prisoner,  on  the  ground  that  he 
has  been  once  in  jeopardy,  and  can  not,  therefore,  be  tried 
acain.  The  question  is  a  serious  one,  and  we  have  considered 
it  with  care.  The  judgment  and  conviction  are  set  aside  in 
this  case  on  a  proceeding  instituted  by  the  prisoner,  and  are  to 


;■    "i 

I 

J     ' 

' 

, 

^     ) 

f 

i 

1      i 
1 

\ 

: 

4:1 


732 


AMERICAN  CRIMINAL  REPORTS. 


be  treated  as  if  the  judgment  had  been  arrested  on  his  own 
motion,  and  the  judgment  and  verdict  set  aside.  In  such  cases 
the  plea  of  former  jeopardy  can  not  avail.  State  v.  llays,  2  Lea 
(Tenn.)  150;  State  v.  Walters,  16  La.  Ann.  400;  State  v.  Redman, 
17  Iowa  329;  People  v.  Canhorua,  13  Johns.  (N.  Y.)  351;  State 
V.  Norvell,  2  Yerg.  (Tenn.)  24;  Commomoealth  v.  Ilatton,  3  Gratt. 
(Va.)  623;  State  v.  Clark,  69  Iowa  196;  Gerard  v.  People,  3 
Scam.  (111.)  362;  People  v.  Barric,  49  Cal.  342;  People  v.  Okcell, 
23  Id.  456;  Morrisette  v.  State,  77  Ala.  71;  People  v.  Ilelhlng, 
61  Cal.  620;  Johnson  v.  State,  29  Ark.  31;  People  v.  White,  68 
Mich.  64S;  Peo2)le  v.  Price,  74  Mich.  37;  liish.  Or.  L.,  §§  1004, 
1016. 

In  inilv.  People.' above  referred  to,  one  of  the  jury  who 
convicted  the  prisoner  was  an  alien,  and  therefore dis()ualified, 
and  it  was  held  that  his  conviction  was  a  violation  of  section 
28,  article  6,  of  the  constitution.  The  respondent  in  that  case 
moved  for  a  new  trial  upon  that  ground.  This  court,  in  revers- 
ing the  judgment,  onlered  a  new  trial. 

The  judgment  must  be  reversed,  the  prisoner  must  be  re- 
manded to  the  custody  of  the  sheriff  for  the  county  of  Wayne, 
and  a  new  trial  is  ordered. 

Morse,  Long  and  McGeath,  JJ.,  concurred  with  Ciiamplin, 
C.J. 

Grant,  J.  I  concur  with  my  brother  Champlin  in  his  opin- 
ion that  the  respondent  was  not  accorded  a  public  trial  within 
the  meaning  of  the  constitution  and  the  laws  of  this  state,  but 
I  can  not  concur  with  him  in  holding  that  the  writ  of  certiorari 
was  the  proper  way  to  bring  the  case  to  this  court.  I  think 
the  writ  was  improvidently  issued.  The  respondent  offered 
testimony  ten  'ing  to  show  that  persons  had  been  excluded 
from  the  cour.  room  during  the  trial  by  an  officer  in  charge  of 
the  principal  entrance  to  the  court-room.  The  court  refused 
to  admit  it.  Respondent's  counsel  excepted.  He  should  have 
settled  a  bill  of  exceptions,  and  brought  the  case  to  this  court 
by  a  writ  of  error.  It  is  no  answer  to  this  to  say  that  the  trial 
court  refused  an  exception.  This  no  court  could  prevent. 
Counsel  announced  his  exception,  which  was  minuted  by  the 
stenographer,  as  shown  by  the  return.  No  order  was  made  by 
the  court  and  entered  upon  the  minutes.  The  judge  had  given 
instructions  to  the  officer  not  to  permit  the  court  room  to  be 


■  IWII       I       IT" 


■1»|' 


PEOPLE  V.  MURRAY. 


733 


overcrowded.  This  instruction  was  proper,  but  he  hiul  no 
right  to  commit  to  the  otlicer  the  determination  as  to  who 
were  respectable  citizens  to  be  admitted.  It  is  apparent  tluit 
the  court  could  make  no  return  to  many  of  tlie  statements 
made  in  the  affidavits,  for  the  facts  they  stated  did  not  occur 
in  his  presence.  The  exclusion  of  citizens  was  a  fact  to  be 
proven,  like  any  other  fact,  and  the  truth  should  be  elicited  by 
examination  and  cross-examination.  It  does  not  seem  to  me  , 
to  be  the  proper  practice  that  so  important  a  (luestion  should 
be  determined  in  the  court  of  last  resort  upon  ex  parte  affidavits 
which  contain  many  hearsay  statements. 

To  illustrate,  several  of  the  affiants  say  that  the  benches 
Avere   practically  vacant,  without    giving  any  statement  or 
opinion  as  to  how   many  were  tliere.    What  is  meant  by 
"  ])ractically  vacant  ? "    How  many,  in  the  opinion  of  this  wit- 
ness, or  how  few,  should  be  present  in  order  to  constitute  such 
practical  vacancy  ?    Counsel  for  respondent  recognized  this  as 
the  proper  practice  in  raising  the  point  upon  the  trial,  for,  in 
a  reply  to  a  question  by  the  court,  he  said :  "  I  do  not  know 
who  has  been  excluded  or  who  has  not,  but  for   the  sake  of 
saving  the  jwint,  I  desire  an  exception  to  be  entered  upon  the 
record."     Respondent  was  convicted  May  3,  1890.    August 
28,  1890,  he  presented  to  one  of  the  justices  of  this  court  a 
petition  for  a  writ  of  certlomt'l,  which  was  allowed,  and  no 
steps  appear  to  have  been  taken  to  bring  the  case  to  a  hear- 
ing in  this  court  until  October  term,  1891.    The  record  con- 
tains less  than  ten  pages.    All  the  facts  were  known  to  the 
respondent  and  his  counsel  at  the  trial.    All  the  papers  could 
have  been  prepared  in  a  few  hours.    The  case  could,  and 
should,  if  presented  at  all,  have  been  presented  to  this  court  at 
the  June  term,  1890.    Instead,  however,  the  case  rests  for 
three  and  one-half  months,  until  the  time  to  settle  a  bill  of  ex- 
ceptions has  expired,  and  then,  after  obtaining  an  allowance  of 
writ,  rests  for  thirteen  months  longer.    Meanwulle  it  is  prob- 
able'tbat  the  people's  testimony  is  scattered  and  lost.     Such 
delays,  if  attributable  to  the  respondent,  do  not  comport  with 
innocence,  especially  when  he  is  in  prison  serving  out  his  sen- 
tence.   The  delays  ca  n  not  be  too  severely  condemned.    They 
are  in  my  judgment,  a  disgrace  to  the  administration  of  the 
criminal  law.  ^^For  these  reasons  I  think  the  writ  should  be 
dismissed. 


I 

if 


;  :f 


784 


AMERICAN  CRIMINAL  REPORTS. 


FULCIIKR  V.  StATR. 

(82  Tex.  Crim.  App.  621.) 
Theft:    What  constitutes— Conversion  by  bailee. 

Pen.  Code,  art.  742a,  declares  that  any  person  having  possession  of  |K>rRona1 
property  of  another  under  a  contract  of  bailment,  who  shall,  without 
consent  of  the  owner,  fraudulently  convert  such  projierty  to  his  own 
use.  shall  be  guilty  of  theft.  Held,  that  the  fact  that  a  bank,  by  mis- 
take, pai<l  defendant  |500  more  than  his  check  called  for,  wliich  he 
converted  to  his  own  use,  did  not  justify  a  conviction  under  this 
article. 

Appeal  from  District  Court,  Midland  County;  'WiUiam  Ken- 
nedy, Judge. 

W.  F.  Fulcker  was  convicted  of  fraudulent  conversion  of 
money,  and  appeals.     Reversed. 

/!  G  Thurmond,  for  appellant. 

E.  L.  Henry,  Asst.  Atty.  Gen.,  for  the  State. 

SiMPKiNS,  J.  Appellant  was  convicted  of  a  fraudulent  con- 
version of  money  paid  to  him  by  mistake,  and  his  punishment 
assessed  at  two  years  in  the  penitentiary.  The  only  question 
in  the  case  is  whether  the  offense  charged  against  appellant  is 
within  the  purview  of  article  742a  of  the  Penal  Code.  In  this 
case  the  cashier  of  the  First  National  Bank  of  Midland  County, 
by  mistake,  paid  to  appellant  $500  more  than  his  check  on  that 
bank  called  for,  which  >ras  converted  by  appellant  to  his  own 
use.  Article  742a  declares  that  any  person  having  possession 
of  personal  property  of  another  by  virtue  of  a  contract  of  hiring 
or  borrowing,  or  other  bailment,  who  shall,  without  consent  of 
the  owner,  fraudulently  convert  such  property  to  his  own  u.se 
with  intent  to  deprive  the  owner  of  the  value  of  the  same,  shall 
be  guilty  of  theft.  The  indictment  contained  two  counts- -one 
for  the  theft  of  the  money,  which  was  dismissed.  The  other 
count  alleges  that  appellant  "  did  then  and  there  obtain  and 
acquire  from  W.  E.  Connell  the  possession  and  custody  of  five 
hundred  dollars,  current  money  of  the  United  States,  the  prop- 
erty of  said  Connell,  b}'^  virtue  of  a  contract  of  bailment,  in 
this :    That  the  said  W.  £.  Connell  did  then  and  there  pay  sa  id 


^' 


STATE  V.  PRESTON. 


r35 


money  aforesaid  to  the  said  W.  F.  Fulclior  by  miatuko,  who, 
wliile  in  possession  of  said  money  by  virtue  of  said  baibnent, 
did  then  and  there  iraudnlently  convert  an<l  appropriate  sai(l 
money  to  his  own  use,  with  intent,"  etc.     Did  the  payment  of 
this  money,  by  mistake,  to  apptlhint,  make  liiin  a  bailee  <    A 
"  bailment "  may  be  defined  as  a  delivery  of  ]»ersonal  |)roj)erty 
to  another  for  some  purpose,  upon  a  contract,  expressed  or 
implied,  that  such  purjiose  shall  be  carried  out.    2  151.  Coinm. 
461;  Jones,  Bailm.  117,  Ptory,  Bailm.,  §  2.    Money  ])aid  by 
mistake,  as  in  the  case  at  bar,  can  no*  be  held,  undev  tlie  above 
definition,  to  be  a  bailment.    There  was  no  intent  on  the  ])art 
of  the  cashier,  (/onnell,  to  deliver  the  money,  to  wit,  the  sai<l 
$500,  to  ap|iellant  for  any  purpose.     If,  however,  at  the  time 
the  appellant  received  the  ])roporty,  he  formed  the  criminal 
design  to  appropriate  it  to  his  own  use,  and  did  so  appropriate 
it,  it  would  be  theft.    Article  727  Pen.  Code.    In  Reg.  v.  Mid- 
df^ton,  L.  R.,  2  Crown  Cas.  38,  where  A  gave  a  cabinan  a  sov- 
ereign by  mistake,  thinking  it  was  a  shilling,  and  it  was  kept 
by  the  cabman,  it  was  held  by  the  court,  eight  judges  concur- 
ring, to  be  larceny.    Whart.  Cr.  Ev.  915.    We  think  the  court 
erred  in  permitting  a  conviction  under  the  bailment  count 
under  article  742a.     In  this  case  the  state  dismissed  the  count 
for  theft,  and  relied  upon  the  count  of  conversion  by  a  bailee. 
This  was  error.    The  judgment  is  reversed,  and  the  cause  re- 
m  mded. 


11  ;; 


•1^ 


r  ' 
(1 


State  v.  Pkestoit. 


(4  Idaho  — ;  38  Pac.  694.) 
Vagrancy:    Municipal  corjJorationa—Penal  ordinances— Verdict, 

1.  Under  subdivision  31,  §  2230,  Rev.  St.,  and  subdivision  25,  §69,  p.  116, 
Laws  2d  Sess.  1893,  an  information  for  vaRrancy  which  alleges  "  that 
the  defendant,  Frank  A.  Pi-eston,  on  the  6th  day  of  May,  1894,  and  for 
three  weeks  prior  thereto,  at  Pocatello,  in  the  county  of  Bannock,  and 
state  of  Idaho,  unlawfully  roamed  and  unlawfully  has  roamed  about 
from  place  to  place  without  any  lawful  business,  wilfully,  and  unlaw- 
fully was,  has  been,  and  continues  to  be,  and  still  is,  an  idle  and  dissolute 
person,  who  wanders  and  roams  about  the  streets  of  said  city  at  late 
and  unusual  hours  of  the  night,  has  continued  to  be,  and  still  is,  an  idle 


736 


AMERICAN  CRIMINAL  REPORTS. 


and  dissolute  peraon,  who  lives  and  has  lived  in  and  about  houses  of  ill 
fame  there  situated,"  is  sufficient. 

2.  Municipal  corporations  may  pass  ordinances  for  the  punishment  of  and 
may  punish  for  the  same  acts  as  are  punishable  under  the  Penal  Code, 
when  authorized  so  to  do  by  the  law  under  which  such  towns  and  vil- 
lages are  orjjsnized. 

8.  Held,  that  the  following  verdict  was  sufficient  to  sustain  the  judgment, 
to  wit:  "  We,  the  jury,  in  the  alK)ve-entitled  cause,  find  the  defendant 
guilty  of  being  a  vagrant  at  the  time  charged  in  the  complaint." 

4.  The  form  of  said  verdict  did  not  prejudice  or  tend  to  prejudice  the 
defenlint  in  any  subjtmtial  right,  hauca  should  not  be  held  invalid 
because  of  any  surplusage  it  contains. 

Appeal  from  District  Court,  Bannock  County;  D.  W.  Stand- 
rod,  Judi^e. 

Frank  A.  Preston  was  convicted  of  vagrancy,  and  appeals. 
Affirmed. 


J.  II.  Ilawley  and  /),  C.  Lochoood,  for  appellant. 
Geo.  M.  Parsons^  Atty.  Gen.,  for  the  State. 

SuM.ivAN,  J.  The  defendant  was  arrested  on  a  complaint 
filed  by  the  city  marshal  of  Pocatello  in  the  office  of  the  police 
magistrate  of  that  city,  charging  him  with  violating  a  city 
ordinance  defining  vagrancy,  and  prescribing  punishment 
therefor.  The  defendant  interposed  a  demurrer  to  the  com- 
plaint, which  was  overruled!  and  upon  trial  the  defendant  was 
convicted.  An  appeal  was  taken  to  the  district  court,  where 
the  defendant  was  tried  anew,  and  convicted,  and  sentenced  to 
pay  a  fine  of  $09.  Motion  in  arrest  of  judgment  was  made 
and  overruled.     Thereupon  the  defendant  took  this  appeal. 

Tlie  first  error  assigned  is,  "  That  the  demurrer  to  the  com- 
plaint should  have  been  sustained."  The  record  fails  to  show 
that  the  demurrer  was  insisted  on  in  the  district  court,  or  that 
it  was  passed  upon  by  that  court.  The  record  shows  that  a 
demurrer  was  interposed  in  the  police  court,  and  overruled. 
The  ground  of  said  demurrer  was  that  the  comjilaint  did  not 
state  facts  sufficient  to  constitute  a  public  offense.  Sub- 
division 31,  §  2230,  Rev.  St..  and  subdivision  25,  §  09,  p.  IIO, 
Laws  2d  Sess.,  authorize  towns  and  villages  to  pass  by-laws 
and  ordinances  for  the  punishment  of  vagrants  and  persons 
found  in  the  town  without  visible  means  of  support  or  some 
legitimate  business.    The  complaint  charges  that  the  defend- 


■saaEaaa^ibAdUiatttai 


STATE  V.  PRESTON. 


737 


sh  merit 
le  com- 
ant  was 
where 
need  to 
IS  made 
leal. 
le  corn- 
to  show 
or  that 
that  a 
erruled. 
did  not 
Sub- 
p.  11(5, 
by-laws 
persons 
or  smie 
defend- 


ant is  an  idle  and  dissolute  person,  without  any  lawful  business, 
and  that  he  roj>ms  about  the  streets  of  said  city  at  late  and 
unusual  hours  of  the  night,  and  lives  in  and  about  houses  of 
ill-fame.  Section  7208,  Rev.  St.,  defines  what  persons  are 
vagrants,  and,  among  others  it  declares  a  person  who  roams 
about  from  place  to  place,  without  any  lawful  business,  or  an 
idle  or  dissolute  person,  who  wanders  about  the  streets  at  late 
or  unusual  hours  of  the  night,  or  a  lewd  and  dissolute  person, 
who  lives  in  and  about  houses  of  ill-fame,  to  be  a  vagrant. 
The  complaint  sufficiently  charges  the  crime  of  vagrancy,  and 
there  was  no  error  in  overruling  the  demurrer.  £x  parte 
McCarthy,  72  Cal.  384. 

Appellant  further  contends  that  towns  and  villages  can  not 
punish  for  vagrancy,  for  the  reason  that  that  crime  is  punish- 
able under  the  Penal  Code,  and  cites  h  re  Sic,  73  Cal.  142,  14 
Pac.  4U5,  which  holds  that  "  A  municipal  corporation  has  no 
power,  under  section  11  of  article  11  of  the  constitution,  to 
pass  an  ordinance  punishing  exactly  the  same  acts  which  are 
punishable  under  the  general  laws  of  the  state."  This  decision 
has  been  reaffirmed  in  several  subsequv^nt  decisions  of  the 
supreme  cot  rt  of  that  state.  Those  decisions  seem  to  proceed 
u]X)n  the  theory  that  to  permit  towns  and  villages  to  punish 
for  offenses  that  are  punishable  under  the  penal  statutes  of  the 
state  would  be  contrary  to  that  provision  of  the  constitution 
which  provides  that  no  one  shall  be  twice  put  in  jeopardy  for 
the  same  offense,  and  hold  such  ordinances  void  for  that  reason, 
or  as  in  conflict  with  the  statutes  providing  punishment  for  the 
same  offense. 

In  the  case  last  above  cited  the  court  says :  "  The  decisions 
on  this  question  are  so  very  conflicting  that  they  present  no 
obstacle  to  our  considering  it  as  a  new  one,"  etc.,  and  proceeds 
to  consider  it  as  a  new  one,  and  hold  such  ordinances  void. 
After  carefully  considering  the  authorities  on  both  sides 
(.f  this  question,  I  find  that  the  clear  weight  of  authority 
and  reason  is  against  the  rule  adopted  by  the  supreme 
court  of  California,  and  conclude  that  said  ordinance  is  valid, 
and  should  be  sustained,  and  cite  in  support  thereof  a  few  of 
the  authorities  hica  sustain  our  position :  1  Dill.  Mun.  Corp., 
§§  367,  368,  fnd  notes;  McPherson  v.  Village  of  Chehame,  114 
111.  46;  St.  Johnsbury  v.  Thompson,  59  Vt.  300;  Greemoood  v. 
State,  6  Baxt.  567;  StaU  v.  Clark,  64  Mo.  17;  Hamilton  v. 
47 


!  \ 


\-:)k\ 


H 


lU 


738 


AMERICAN  CRIMINAL  REPORTS. 


State,  3  Tex.  App.  643;  State  v.  Bergman,  6  Or.  341;  State  v. 
Mayor,  etc.,  of  Morristown,  33  N.  J.  Law,  57;  Bish.  St.  Crimes, 
§  23;  Cooley,  Const.  Lim.  (6th  Ed.),  239.  The  author  of  the 
last  authority  above  cited,  at  page  239  says :  "Indeed,  an  act 
may  be  a  penal  offense  under  the  laws  of  the  state,  and 
further  penalties  under  proper  legislative  authorities  be  im- 
posed for  its  commission  by  municipal  by-laws,  and  the  en- 
forcement of  the  one  would  not  preclude  the  enforcement  of 
the  other;"  and  in  note  4,  he  says :  "  Such  is  the  clear  weight 
of  authority,  though  the  decisions  are  not  uniform."  Mr. 
Bishop,  in  his  work  on  Statutory  Crimes,  at  section  23,  says : 
"  In  some  states,  under  their  statutes,  it  is  deemed  not  com|  e- 
tent  for  the  corporation  to  render  punishable  by  by-law  what 
is  already  a  crime  under  the  general  law.  In  other  states  this 
is  not  held,  and  effect  is  given  to  by-laws  niaking  punishable 
what  is  so,  also,  under  the  general  law.  And  where  the  terms 
of  the  incorporating  act  clearly  include  the  power,  such  result 
would  appear  to  be  unquestionable."  The  legislature  of  this 
state  has  conferred  on  towns  and  villages,  under  proper  ordi- 
nances or  by-laws,  authority  to  punish  vagrants  and  persons 
found  without  visible  means  of  support  or  some  legitimate 
business,  and  the  ordinance  in  question  is  clearly  within  the 
authority  so  conferred. 

The  appellant  assigns  as  error  the  insufficiency  of  the  ver- 
dict to  sustain  the  judgment.  The  verdict  is  as  follows,  to 
wit :  "  We,  the  jury  in  the  above  entitled  cause,  find  the  de- 
fendant guilty  of  being  a  vagrant  at  the  time  charged  in  the 
complaint."  The  intention  of  the  jury  can  not  bo  misunder- 
stood from  the  language  of  the  verdict.  Whether  the  jury 
found  the  appellant  "  guilty "  or  "  not  guilty,"  requires  no 
construction  of  the  wording  of  the  verdict  to  determine.  The 
verdict  is  not  in  the  usual  form  prescribed  by  the  Penal  Code, 
but  section  8236,  Rev.  St.,  provides  as  follows :  "  Neither  a 
departure  from  the  form  or  mode  prescribed  by  this  Code  in 
respect  to  any  pleading  or  proceeding,  nor  any  error  or  mis- 
take therein  renders  it  invalid,  unless  it  has  actually  prejudiced 
the  defendant  or  tended  to  his  prejudice  in  respect  to  a  sub- 
stantial right."  See,  also,  Kellurn  v.  State,  6  Miss,  220;  State 
V.  Wilson,  40  La.  Ann.  751.  There  is  no  pretense  that  the  de- 
fendant has  been  prejudiced  in  any  substantial  right  by  the 
form  of  said  verdict,  or  that  it  is  indefinite  or  uncertain  as  to 


i'"--""' 


jn' 


STATE  c.  PUESTON. 


739 


Mr. 

savs : 


till'  jiny.    Tlu'  ViM-dict  is  siilliciont 
Sfxh  V.  lirnl  (Idiiho),  35  I'ac.  7<m;; 


the  conclusion  reaci^ed  dv 
to  sustain  the  juil<,nn*Mit. 
State  V.  Clitd\  Id.  710. 

The  fourth  error  assi<fn^'d  is  tlie  givinj^  of  an  oral  instruc- 
tion.    It  aj^pears  from  the  iX'cord  that  tiie  court  <favo  the  fol- 
lowing oral  charge  to  the  jury  :     "  (1)  Tlie  jury  arc  instructed, 
if  they  believe  from  the  evidence;  that  the  facts  alleged  in  the 
complaint  of  the  plaintitT  tiled  herein  are  true,  tliey  will  find 
the  defendant  guilty  as  charged."    The  record  then  prcx^eeds 
as  follows,  to  wit :     "  Rest  of  the  charge  immaterial  to  raise 
(juestion  presented  to  the  court.    To  which  charge  dofendaiit 
objected,  which  objecticm  by  the  court  was  overruled,  to  which 
ruling  defendant  excepted."     It  a])pears  from  the  above  that 
defendant  objected  to  the  charge,  but  on  what  ground  the 
record  fails  to  disclose.    It  is  not  sulHcient  for  a  i>arty  to  say 
that   they  "  object."     The  ground  of  his  objection  must  Ix- 
stated.     The  court  can  not  be  left  to  guess  the  ground  of  such 
objection.    This  ])rinciple  is  elementary,  and  needs  no  citation 
of  authorities.     It  may  be  that  defendant  objected  to  the  in- 
struction on  the  ground  that  it  misstated  the  law,  or  on  t\v 
ground  that  it  was  given  orally.    How  was  the  court  to  ascer- 
tain the  ground  of  the  objection  if  not  informed  by  the  party 
objecting  ?     However,  considering  this  matter  of  some  consid- 
erable importance,  and  as  it  has  been  fully  argued  by  respect- 
ive counsel,  I  will  consider  the  objections  jiresented  by  the 
brief.     Ap|>ellant  insists  in  this  court  that  there  Avas  error- 
First,   because    the  instruction    was   not    given  in  writing; 
second,  because  it  is  not  the  law;  and  on  the  second  ground, 
urges  that  it  is  not  the  law,  because  it  %ils  to  state  that  the 
jury  must  believe  the  defendant  guilty  "  beyond  a  reasonable 
doubt,"  before  they  can  convict. 


There  is  nothing  in  this  con- 


tention, for  the  reason  that  the  record  shows  that  other 
instructions  were  given,  and  it  is  not  shown  but  what  the 
instructions  given  covered  fully  said  ground  of  objection. 
Subdivision  6,  §  7855,  Rev.  St.,  roads  as  follows :  "  The  judge 
must  then  charge  the  jury,  if  requested  by  either  party;  he 
may  state  the  testimony  and  declare  the  law,  but  must  not 
charge  the  jury  in  respect  to  matters  of  fact;  such  charge 
must  bo  reduced  to  writing  before  it  is  given,  unless  by  mutual 
consent  of  the  parties  it  is  given  orally."  California  had  a 
statute  the  same  in  substance  as  the  one  above  quoted,  and,  in 


740 


AMERICAN  CRIMINAL  REPORTS. 


a  long  line  of  decisions,  beginning  with  People  v.  Heeler,  6  Cal. 
a'tO,  down  to  Peoj}le  v.  Uersey,  53  Cal.  574,  it  was  held  that  it 
was  Qxxox  per  se  to  charge  the  jury  orally  except  by  consent 
of  the  parties.  Said  section  of  the  California  statute  (section 
1U93,  Pen.  Code)  as  amended  in  1874,  provides,  in  subdivision 
6,  that  if  the  charge  be  not  given  in  writing,  it  must  be  taken 
down  by  the  phonographic  reporter. 

It  is  also  held  by  some  California  decisions,  a  number  of 
which  are  cited  in  People  v.  Ilersey,  Bnpra,  that  the  provisions 
of  said  statute  are  mandatory,  and  not  merely  directory.  In 
some  of  said  decisions  it  is  held  that  when  the  record  fails 
affirmatively  to  show  consent  of  defendant  to  oral  instructions, 
the  judgment  will  be  reversed.  But  in  People  v.  Ferris,  56 
Cal.  442,  the  earlier  decisions  of  that  court  upon  that  point 
appear  to  have  been  overruled,  or  a  different  rule  applied. 
And  the  change  appears  to  have  been  based  on  the  amend- 
ment to  section  101)3  of  the  Penal  Code  of  California,  which 
requires  the  stenographic  court  reporter  to  take  down  all  oral 
instructions.  In  that  case  last  cited  the  court  sa^'s :  "  It  is 
objected  that  the  court  orally  instructed  the  jury  to  acquit  the 
defendant,  unless  they  find  him  guilty  under  the  first  count  of 
the  indictment.  In  this,  the  court  did  not  misdirect  the  jury 
to  the  prejudice  of  the  defendant.  The  second  count  had  been 
withdrawn,  and  the  first  was  the  only  one  left  upon  which  the 
jury  could  return  a  verdict.  But  the  statute  authorized  oral 
instructions  to  be  given  to  the  jury  in  a  criminal  case  if  taken 
down  by  the  shorthand  reporter.  The  legal  presumption  is 
that  that  was  done.  It  is  for  the  defendant  to  overcome  that 
presumption.  He  must  affirmatively  show  error;  the  couit 
may  not  presume  it.  There  appears  no  error  in  the  record, 
and  the  judgment  and  order  denying  a  ne;v  trial  are  affirmed." 

The  principle  that  the  apjiellant  must  affirmatively  show 
error,  that  the  court  will  not  presume  it,  is  laid  down  in  Peoph 
V.  Wheatley,  88  Cal.  114,  and  People  v.  McGregor,  88  Cal.  140. 
In  People  V.  WIteatley,  88  Cal.,  the  court  says :  "  "Where  there 
is  nothing  in  the  record  to  show  that  the  information  was  not 
read  by  the  clerk  to  the  jury,  it  will  be  presumed  that  it  was 
so  read."  In  Parl'cr  v.  Altschtd,  GO  Cal.  381,  the  court  says : 
"  All  presumptions  are  in  favor  of  the  correctness  of  the  pro- 
ceedings of  courts  of  general  jurisdiction,  and,  as  the  consent 
of  the  defendants  would  have  justified  the  order,  we  must  pre- 


STATE  V.  PRESTON. 


741 


56 


sume  that  such  consent  was  given,  there  being  nothino-  in  tlie 
record  to  show  that  it  was  not."     Wfiite  v.  AJmrH((ih>j.  3  Cul. 
426;    Loice  v.  Turner,  1  Idaho  107;    Goodinnn  v.  MlUinfj  Co., 
Id.  131;    Hazard  v.  Vole,  Id.  276.    The  cases  here  cited  are 
civil  cases,  but  the  principle  enunciated  applies  to  courts  of 
general    jurisdiction,  whether    acting  in  civil    or  criminal 
matters.     In  the  case  at  bar  it  would  have  been  an  easy  matter 
(if  true)  for  the  defendant  to  have  shown  in  his  bill  of  excep- 
tions that  said  instructions  were  not  taken  in  writing,  and  that 
they  were  given  without  his  consent.    It  is  urged  by  the  at- 
torney-general that  subdivision  6,  §  7855,  Rev.  St.,  1887,  was 
modifted  by  the  stenographic  court  reporter  act,  in  that  it  re- 
quires such  reporter  to  correctly  report  all  proceedings  had  in 
said  court,  and  therefore  requires  the  reporter  to  report  or  re- 
duce to  writing  all  oral  instructions;  and  to  hold  that  they 
should  also  be  written  out  by  the  judge  would  bean  absurdity; 
that  to  all  intents  and  purposes  the  said  subdivision  6,  in  con- 
nection with  the  stenographic  reporter  act,  leaves  our  law 
upon  the  question  of  oral  instructions  substantially  the  same  as 
the  California  law  upon  tiiat  subject.    I  think  the  position  of 
the  attorney -general  is  well  taken.    The  reason  for  the  rule 
laid  down  in  sul)division  6  of  said  section  7855  was  to  preserve 
the  instruction  in  form  and    substance  the   same  as  when 
delivered  to  the  jury,  so  that,  on  motion  for  a  new  trial,  or  on 
appeal,  the  instructions  may  be  had  verhatlm  as  delivered  from 
the  lips  of  the  judge.    The  end  thus  sought  is  secured  by 
said  stenographic  reporter's  act.    The  instructions  must  be  re- 
duced to  writing  by  the  reporter.    That  being  done,  the  object 
of  the  law  is  attained.   Unless  the  record  affirmatively  shows 
that  the  court  reporter  failed  to.  reduce  the  instructions  to 
writing,  the  presumption  is  that  he  did  do  so.    Error  must  be 
aifirmatively  shown  by  the  record ;  it  will  not  be  presumed. 
The  judgment  of  the  lower  court  is  affirmed. 

Houston,  C.  J.,  and  Moroan,  J.,  concur. 


>:    ,'f 


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says : 
16  pro- 
)nsent 
5t  pre- 


742 


AMEUICAN  CRIMINAL  REI^ORTS. 


State  v.  Hudson. 

(18  Mont.  112.) 
Venue:  Uttering  forged  instruments. 

Tlie  mailing  of  a  forged  instrument  in  one  county,  and  tlie  receipt  thereof 
in  another  county,  does  not  constitute  an  uttering  in  tlie  firet  county, 
witliin  Crim.  Pr.  Act,  §  32,  providing  that  when  a  crime  has  been  com- 
mitted partly  in  one  county  and  partly  in  another  county,  or  the  acts  or 
effects  constituting  or  requisite  to  the  consummation  of  the  oif  ense  occur 
in  several  counties,  the  jurisdiction  is  in  either. 

Ajipeal  from  District  Court,  Gallatin  Coui  ty;  F.  II.  Arm- 
strong, Judge. 

James  M.  Hudson  was  convicted  of  uttering  forged  paper 
and  appeals.     Reversed. 

This  is  an  appeal  by  the  defendant  from  a  judgment  upon  a 
conviction  for  uttering,  publishing  and  passing  an  alleged 
forged  instrument.  The  opinion  below  treats  but  one  of  sev- 
eral points  made  by  appellant,  which  may  be  stated  as  follows : 
Information  was  filed  in  Galatin  county,  charging  the  olfenso 
of  uttering,  publishing  and  ])assing  the  forged  instrument  in 
Gallatin  county.  The  proof  was  that  the  defendant  deposited 
the  alleged  forged  instrument  in  the  United  States  mail  at 
Three  Forks,  a  post  office  in  Gallatin  county,  directed  to  the 
cit}'  of  Butte,  a  post  office  in  Silver  Bow  county,  to  the  Singer 
Manufacturing  Company,  the  party  alleged  to  be  inten  !?•!  to 
be  defrauded  by  the  defendant.  The  Singer  Manuf.  .  av 
Company,  to  whom  the  forged  instrument  was  so  seut,  j  >  \  .  eil 
the  same  at  Butte,  in  Silver  Bow  county.  This  was  .  e  only 
testimony  as  to  venue — as  to  the  place  where  the  defendant 
uttered,  published  and  passed  the  instrument.  The  court  in- 
structed the  jury,  {is  to  the  matter  of  venue,  that  if  the  state 
has  shown  that  the  defendant  mailed  the  instrument  in  Gala- 
tin  county,  state  of  Montana,  addressed  to  the  Singer  Manu 
facturing  Company,  at  the  city  of  Butte,  Montana,  with  the 
intent,  etc.,  and  that  the  defendant  knew  the  instrument  to  be 
false  and  fictitious,  and  that  the  Singer  Manufacturing  Com- 
pany received  the  instrument  in  the  course  of  mail,  that  was 
sufficient.  The  question  now  upon  the  appeal  is,  whether  the 
facts  of  a  mailing  of  the  forged  instrument  by  defendant  in 


■"•"■"•""''^ 


Tim' 


STATE  V.  HUDSON. 


748 


Gallatin  county,  and  the  due  receipt  of  the  same  by  the  Singer 
Manufacturing  Company  in  Silver  Bow  county,  constituted  an 
uttering,  publishing  and  passing  in  Gallatin  county.  If  yes, 
the  venue  was  proved;  if  no,  the  venue  was  not  proved,  and 
the  judgment  must  be  reversed.  And  it  appearing  that  de- 
fendant can  not  be  convicted  in  said  county  on  the  charge  of 
uttering  said  instrument  in  that  jurisdiction,  it  is  therefore 
further  ordered  that  a  nolle  prosequi  be  entered,  and  that  the 
court  below  cause  defendant  to  be  discharged  from  imprison- 
ment on  said  conviction. 


•!p<1  to 


,ca 


£.  p.  Cadwell,  for  appellant. 

Henri  J.  UoHkell^  Atty.  Gen.,  for  the  State. 

De  Wrrr,  J.  (after  stating  the  facts).    The  precise  question 
presented  here  was  thoroughly  considered  in  New  York  in  the 
case  of  People  v.  liathlmn,  21  Wend.  508.    Mr.  Justice  Cowen 
wrote  an   exhaustive  opinion,  both  upon  the    reason  of  the 
proposition,  and  upcm  the  authority  of  the  decided  cases.    The 
case  is  a  standard  citation  in  the  text  books.    3  Greenl.  Ev., 
§  112;  "Whart.  Crim.  Law,  §  1451;  2  Bish.  Grim.  Proc,  §428. 
In  a  later  case  in  New  York  {Peoj)le  v.  Adams,  3  Denio,  209), 
the  opinion  of  the  court,  after  speaking  of  the  principle  de- 
cided in  21  Wend.,  and  after  citing  other  cases,  went  on  to  re- 
mark :  "  And  to  the  same  effect  are  the  views  of  the  late  Mr. 
Justice    Cowen,  as  expressed  in  Rathbun's  case.    And  the 
principle  is  too  reasonable  and  just  of  itself,  and  too  well  sus- 
tained by  adjudged  cases,  to  admit,  in  my  judgment,  of  any  se. 
rious  doubt."    It  was  held  in  the  Rathbun  case  that  the  venue 
was  in  the  county  where  the  letter  containing  the  forged  in- 
strument was  received,  and  not  in  the  county  where  it  was 
mailed.     Ui)on  that  theory  the  venue  in  the  case  at  bar  should 
be  in  Silver  Bow  county  and  not  in  Gallatin  county.    We  are 
wholly  satisfied  with  Justice  Cowen's  views,  and  nothing  new 
occurs  to  us  which  would  add  to  the  weight  of  his  reasoning 
or  conclusion.    The  venue  was  not,  therefore,  proved  in  Gal- 
latin county;  and  the  judgment  must  be  reversed,  unless  our 
statute  has  worked  a  change  in  the  principle  announced  in 
the  Rathbun  case.    The  Rathbun  case  discussed  the  doctrine 
of  an  offense  being  committed  partly  in  one  county  and  partly 
in  another,  and  conclude  that  the  offense  was  committed 


744 


AMERICAN  CRIMINAL  REPORTS. 


wholly  in  the  county  where  the  letter  was  received.  Our 
statute  provides  as  follows :  "  When  a  crime  has  been  commit- 
ted, partly  in  one  county  and  partly  in  another,  or  the  act  or 
effects  constituting  or  requisite  to  the  consummation  of  the 
offense  occur  in  two  or  more  counties,  the  jurisdiction  is  in 
either  county,  and  the  court  in  which  the  prosecution  shall 
have  been  first  commenced  shall  have  precedence."  Section 
32  Crim.  Pr.  Act.  But  in  the  case  at  bar,  the  crime  was  not 
partly  committed  in  Gallatin  county.  The  uttering  was  the 
offense.  There  was  no  uttering  until  the  receipt  of  the  leiier 
in  Silver  Bow  county.  The  mailing,  as  above  observed,  was 
not  the  uttering.  Had  the  letter  been  cut  off  in  its  passage 
from  Gallatin  to  Silver  Bow  county,  or  had  it  been  destroyed, 
or  never  received,  there  would  have  been  no  uttering  at  any 
place.  Nor  were  the  acts  or  effects  constituting  the  offense 
committed  in  Gallatin  county.  That  which  constitutes  the 
offense  was  the  uttering.  If  nothing  had  occurred  other  than 
that  which  occurred  in  Gallatin  county — that  is,  if  nothing 
had  occurred  further  than  the  mailing  of  the  letter  in  Gallatin 
county — there  would  have  been  no  uttering,  and  no  offense. 
Nor  were  the  acts  or  effects  requisite  to  the  consummation  of 
the  offense  committed  in  Gallatin  county.  It  was  not  requi- 
site to  the  consummation  of  the  offense  that  the  letter  sliouhl  be 
mailed  in  Gallatin  county,  or  elsewhere.  The  forged  instru- 
ment could  have  gone  to  the  Singer  Manufacturing  Company 
by  any  vehicle  other  than  the  mail.  The  defendant  could 
have  handed  it  to  the  Singer  Manufacturing  Company  in 
person. 

It  may  be  said  that,  under  the  facts  in  this  case,  there  would 
have  been  no  uttering,  that  is  to  say,  the  instrument  would  not 
have  reached  the  Singer  Manufacturing  Company,  and  so  be 
uttered  or  published,  unless  it  had  been  put  into  the  mail,  and 
that  therefore  such  depositing  in  the  mail  was  an  act  requi- 
gite  to  the  consummation  of  the  offense.  But  on  the  same  line 
of  suggestion  it  can  be  said  that  if  a  person,  having  determined 
to  murder,  starts  from  Gallatin  county,  and  travels  to  Silver 
Bow  county,  and  there  accomplishes  the  crime  of  murder,  if  he 
had  not  started  from  Gallatin  county  he  would  not  have  com- 
mitted the  crime  in  Silver  Bow  county,  and  his  so  starting 
from  Gallatin  county  was  an  act  requisite  to  the  consum- 
mation   of   the   offense.    But  it   would  not  be  contended 


-1^' 


STATE  V.  HUDSON. 


.745 


that  the    venuo  for  such  crime  of    murder   couUl  bo  laid 
in    Gallatin    county.      Again,    a   murderer  miglr,  bi'v   his 
pistol  in    Gallatin  county,  then   go  to  Silver  Bow  oounty, 
and  commit  the  offense.    It  then  could  be  said,  on  the  same 
line  of  suggestion,  that  if  he  had  not  bought  the   pistol 
in  Gallatin  county  the  offense  would  not  have  been  committed, 
and  that  therefore  the  buying  of  the  pistol  was  an  act  requi- 
site to  the  consummation  of  the  offense.    Illustrations  of  this 
nature  might  be  multiplied.    Such  acts  as  mailing  the  letter,  or 
buying  the  pistol,  or  a  murderer  traveling  through  Gallatin 
county  to  Silver  Bow  county,  would  be,  in  those  particular 
cases,  preliminary  to  the  commission  of  the  offense,  and  acts 
without  which,  in  the  particular  case,  the  offense  would  not  be 
committed,  but  they  were  not  acts  requisite  to  the  commission 
of  the  offense.    If  such  acts  were  construed  to  be  those  requi- 
site to  the  consummation  of  the  offense,  there  are  but  few 
crimes,  the  venue  of  which  could  not  be  construed  to  be  in 
counties  other  than  the  actual  county  where  the  offense  was 
committed.    We  are  therefore  of  opinion,  in  the  case  at  bar, 
that  the  venue  of  the  offense,  if  any  offense  were  committed, 
was  in  Silver  Bow  county,  and  that  the  statute  (section  32, 
supra)  does  not  change  the  principles  as  announced  in  the  Rath, 
bun  case,  and  generally  followed  since  the  promulgation  of 
that  decision. 

The  judgment  is  reversed. 

PKMnEKTON,  C.  J.,  and  Harwood,  J.,  concur. 

Note.— 0/  crime  committed  through  agency  ofpoHtalor  carrier  service.— 
It  was  held  in  United  States  v.  Worrnll,  2  U.  S.  2  Dali.  385.  that  a  person 
mailing  a  letter  in  Philadelphia  addressed  tf)  an  officer  in  New  Jeraey,  in 
another  district,  offering  him  a  bribe,  was  in  itself  a  criminal  attempt  t<> 
bribe,  and  indictable  in  the  former  district. 

The  defendant  in  Rex  v.  Johnson,  6  East  583,  while  living  in  Ireland, 
wrote  and  procured  the  publication  of  a  libel  in  Middlesex.  The  court  held 
the  offense  indictable  in  the  latter  place  and  he  was  convicted  of  publication 
in  that  county. 

In  misdemeanor  and  felony  distinguished.— Best,  J.,  said,  in  Rex  v.  Bur- 
dett,  4  Bam.  &  Aid.  96:  "  The  moment  a  man  delivers  a  libel  from  his 
hands,  his  control  over  it  is  gone.  He  has  shot  his  arrow,  and  it  does  not 
depend  on  him  whether  it  hits  the  mark  or  not.  There  is  an  end  of  the 
locus  penitentice;  his  offense  is  complete;  all  that  depends  on  him  is  consum- 
mated, and  from  that  moment  uiwn  every  principle  of  common  sense  he  is 
liable  to  be  called  upon  to  answer  for  his  act."    Referring  to  this  in  People 


li 


i 


n 


■* 

i 

•   >t<:      1 

i1 

'\ 

! 

J 

746 


AMERICAN  CRIMINAL  REPORTS. 


1'.  Rathhun,  21  Wend.  820,  ('owley,  J.,  said:  "  It  is  evident  that  to  import 
Huch  a  doctrine  into  the  law  of  felony  would  at  once  subvert  tlio  law  of  prin- 
cipal and  accessory."  Where  an  innocent  person  is  employed  for  a  criminal 
purpose  tlie  employer  must  be  answerable.    Foster,  Crim.  Law. 

A  larceny,  the  commission  of  wliich  was  induced  by  a  letter,  is  punishable 
where  committed,  without  reference  to  locality  of  the  writer  of  the  letter. 
Oriffln  V.  State,  26  Ga.  498. 

If  a  letter  containing  a  forged  instrument  be  put  into  the  postofTlce  this  is 
not  evidence  of  an  uttering  at  that  place  but  the  venue  must  Im>  laid  in  the 
place  where  the  letter  wns  received.  1  Whart.,  Cr.  Law  (8th  Ed.),  §  711; 
People  V.  Eathbun,  supra. 


Grant  v.  State. 


(88  Fla.  201.) 

"Verdict:  Power  of  court  over — Homicide— Evidence. 

1.  Before  a  verdict  returned  by  a  jury  in  cases  of  felony  is  complete,  it 

must  be  accepted  by  the  court  for  record.  At  any  time  after  the  ver- 
dict is  returned  into  court,  and  before  it  is  accepted  by  tiie  court  for 
record,  the  accused  has  the  right  to  have  the  jury  polled,  in  order  to 
ascertain  if  the  verdict  oflfered  is  unanimous,  and,  in  the  absence  of  a 
polling  of  the  jury,  any  member  thereof  has  the  right  snia  sjxmte,  to 
recede  from  the  verdict  agreed  upon  at  any  time  before  it  is  accepted 
for  record. 

2.  At  common  law  the  verdict  of  the  jury  in  cases  of  felony  was  pro- 

nounced in  open  court,  then  entered  on  the  record  by  the  clerk,  and 
after  this  affirmed  by  the  entire  jury,  when  it  became  complete.  The 
manner  of  receiving  and  affirming  verdicts  in  cases  of  felony  discussed, 

3.  When  a  juiy  returns  into  court  an  informal,  insensible,  or  a  repugnant 

verdict,  or  one  that  is  not  responsive  to  the  issues  submitted,  they  may 
03  du-ecte.l  by  the  court  to  reconsider  it,  and  present  a  verdict  in 
proper  form.  The  court  should,  however,  use  gi-eat  caution,  and  not 
intimate  to  the  jury  the  kind  of  verdict,  in  substance,  that  should  be 
i-eturned. 

4.  After  the  case  liad  been  submitted  to  the  jury  under  the  charge  of  the 

court,  they  returned  into  court  the  following  verdict,  viz.:  "  We,  the 
jury,  find  the  defendant  guilty  of  manslaughter  in  the  fii-st  degree." 
Tlie  court  refused  to  accept  this  verdict,  and  stated  to  the  jurj-  that  it 
was  not  in  proper  form,  as  there  were  no  degrees  in  manslaughter, 
and  that  they  must  retire  and  present  a  verdict  in  proper  form.  The 
jury  retired,  and  returned  the  following  verdict,  viz.:  '*  We,  the  jury, 
find  the  defendant  guilty  of  murder  in  the  first  degree,  and  recom- 
mend him  to  the  mercy  of  the  court,"  and  tliis  verdict  was  accepted  by 
the  court.  Held,  that  the  court  did  not  err  in  refusing  to  receive  tlie 
first  verdict,  and  in  accepting  the  second  one. 


'^ 


GRANT  V.  STATE. 


u: 


5.  In  the  oi.inion  of  a  majority  of  this  court.  tlu>  tcstiinony  in  tlio  record 
is  not  sutHcient  to  sustain  tlie  verdict  of  murder  in  the  first  dife'icc,  uiid 
a  new  trial  is  awarded. 

Error  to  Circuit  Court,  Dival  County ;  Tl.  M.  Call,  Jtulfro. 
Robert  Grant  was  convjjted  of  murder,  anil  brings  error. 
Reversed. 

T.  A.  tfe  B.  B.  MacDonell,  for  ))laintiff  in  error. 
W.  B.  Lamar,  Atty.  Gen.,  for  the  State. 

Mabuy,  J.  The  indictment  against  the  plaintiff  in  error 
was  for  murder,  and  the  sentence  of  the  court  pronounced 
against  him  was  confinement  in  the  state  i)enitentiary  for  life, 
based  u])on  a  verdict  of  guilty  of  murder  in  the  first  tlogree, 
with  a  recommendation  of  mercy  to  the  court. 

A  motion  in  arrest  of  judgment  was  made  and  overruled. 
The  first  ground  of  the  motion  is  "  that  the  allegations  in  the 
indictment  are  not  sufiicient  to  charge  the  defendant  with 
murder  in  the  first  degree,  but  that  necessary  and  material 
allegations  to  constitute  such  charge  are  not  therein  made,  and 
that  judgment  thereon  in  view  of  the  verdict  received  and  re- 
corded by  the  court,  can  not  be  entered."    The  only  supposed 
defect  pointed  out  in  the  brief  under  this  ground  of  tiie  mo- 
tion is  that  the  indictment  does  not  allege  that  the  wound  was 
the  cause  of  the  death  of  the  deceased.    We  have  examined 
the  indictment,  and  find  that  the  objection  urged  can  not  be 
sustained.     It  is  sufficiently  alleged  that  the  deceased  died  of 
the  wound  inflicted  upon  him  by  the  accused.    The  other 
grounds  of  the  motion  in  arrest  of  judgment  are  not  discussed 
by  counsel,  and  may  be  considered  as  abandoned.    They  call 
for  no  discussion  by  us. 

The  other  points  presented  by  counsel  for  plaintiff  in  error 
for  our  consideration  relate  to  the  action  of  the  trial  court  in 
refusing  to  accept  the  first  finding  returned  by  the  jury,  and 
in  entering  judgment  upon  the  second  verdict,  and  to  the  suf- 
ficiency of  the  evidence  to  sustain  the  verdict  accepted  by  the 
court.  After  the  case  had  been  submitted  to  the  jury  under 
the  charge  of  the  court,  the  bill  of  exceptions  recites  the  fol- 
lowing, viz. :  "  We,  the  jury,  find  the  said  defendant  guilty  of 
manslaughter  in  the  first  degree.  C.  R.  Bisbee,  Foreman"— 
which  said  verdict  the  said  judge  then  and  there  refused  to 


111' 


r48 


AMERICAN  CRIMINAL  REPORTS. 


receive,  stating  to  the  jury  that  the  said  verdict  was  not  in 
such  form  that  the  court  could  receive,  and  that  they  must  re- 
turn and  present  a  verdict  in  proper  form;  that  there  were  no 
degrees  in  manslaughter.  Whereupon  the  said  jury  retired  to 
their  room,  and  afterwards,  to  wit,  on  said  day  then  anil  there, 
gave  their  verdict  in  words  and  figures  following,  to  wit: 
"We,  the  jury,  find  the  defendant  guilty  of  murder  in  the  first 
degree,  and  recommend  him  to  the  mercy  of  the  court.  Nov. 
28th,  '93.    C.  R.  Bisbee,  Foreman." 

Several  grounds  in  a  motion  for  a  new  trial  are  based  upon 
the  action  of  the  court  in  rendering  judgment  on  the  second 
verdict,  and  in  refusing  to  accept  the  first  one.  One  ground 
is  that  the  court  erred  in  receiving  the  second  verdict,  finding 
the  defendant  guilty  of  murder  in  the  first  degree,  for  the 
reason  that  the  verdict  for  manslaughter  in  the  first  degree 
operated  as  an  acquittal  of  the  said  offense  of  murder,  the  lat- 
ter being  a  higher  offense,  and  embracing  the  former.  The 
effect  of  the  first  return  of  the  jury  is  a  matter  presented  for 
our  consideration.  There  are  now  no  degrees  of  manshiughter 
under  our  statutes,  the  only  offense  under  this  head  being 
manslaughter.  Conceding  for  the  present  that  the  first  return 
of  the  jury  was  a  good  finding  of  manslaughter,  and  that  the 
added  words,  "  in  the  first  degree,"  might  have  been  consid- 
ered by  the  court  as  surplusage,  what  effect  must  be  given  to 
this  finding?  In  cases  of  felony,  according  to  the  common 
law,  the  verdict  of  the  jury  is  not  complete  or  conclusive  on 
them  until  accepted  by  the  court  and  recorded.  The  j)r(>ce(lure 
in  returning  verdicts  in  cases  of  felony,  leaving  off  some  of 
the  formalities  in  reference  to  forfeiture  of  estates,  is  in  sub- 
stance as  follows :  When  the  jury  have  come  to  a  unanimous 
agreement  with  respect  to  their  verdict,  they  return  to  the  box 
to  deliver  it.  The  clerk  then  calls  them  over  by  their  names, 
and  asks  them  whether  they  agree  on  their  vertlict;  to  which 
they  reply  in  the  affirmative.  He  then  demands  who  shall 
say  for  them;  to  which  they  answer,  their  foreman.  This  be- 
ing done,  he  directs  the  prisoner  to  hold  up  his  right  hand, 
and,  addressing  the  jury,  says :  "  Look  upon  the  prisoner,  you 
who  are  sworn.  How  say  you  ?  Is  he  guilty  of  the  felony 
whereof  he  stands  indicted,  or  not  guilty  ? "  The  foreman 
then  answers,  "  Guilty,"  or  "  Not  guilty,"  as  the  verdict  may 
be.    The  officer  then  writes  the  word  "Guilty,"  or  "Not 


X' 


GRANT  i;.  STATE. 


r4i» 


I  nay 
Not 


^'uilty,"  us  the  verdict  is,  on  tho  n.-cord,  and  again  addrossos 
t!io  jury:  "  Hearken  to  your  verdict,  as  the  court  liatli  re- 
corded it.  You  say  that  (A)  is  guilty  (or  not  guilty)  of  the  fel- 
ony whereof  he  stands  indicted,  and  so  say  you  all."  1  Chit. 
C'r.  Law,  «30;  C<m.  v.  Toblii,  125  Mass.  2o3;  Gioma  v.  iStatc, 
(Md.)  IT)  Atl.  <;81). 

At  common  law  a  verdict  was  either  public  or  jtrivy.  The 
public  verdict  M'as  pronounced  in  open  court,  in  the  presence 
of  all  the  jury,  and  tho  privy  verdict,  in  order  to  release  a 
jury  from  confinement,  was  delivered  to  the  judge  out  of  court. 
In  all  cases  of  felony  and  treason,  the  verdict  was  rcMiuired  to 
be  delivered  in  o|)en  court,  and  in  the  presence  of  the  prisoner. 
In  the  case  now  before  us,  the  indictment  being  for  murder, 
the  verdict  was  returned  into  o|H3n  court,  and  it  does  not  be- 
come necessary  to  consider  in  what  cases  a  verdict  may  now 
bo  rendered  out  of  court. 

It  may  bo  stated,  however,  that  in  cases  of  misdemeanor, 
and  in  the  lower  grades  of  felonies,  a  practice  has  obtained  of 
consenting  for  the  jury  to  reduce  their  finding  to  writing,  ami, 
after  sealing  it  up,  to  separate  till  the  next  meeting  of  the 
court,  when,  the  y)aper  being  handed  to  the  judge,  the  verdict 
is  received  from  the  foreman  of  the  jury,  and  recorded  in  the 
usual  way.    The  verdict  in  such  a  case  is  not  the  one  written 
out  by  the  jury,  but  the  one  openly  delivered  in  the  court, 
accepted,  and  recorded.    Com.  v.  Currington,  116  Mass.  37;  Com.. 
V.  Dui'fee,  100  Mass.  146.    The  common-law  procedure  in  refer- 
ence to  delivering  verdicts  by  juries  has  been  reluxed  somewhat 
in  modern  practice,  but  still  there  must  be  a  substantial  com- 
pliance with  such  formalities  as  have  been  long  in  use,  as  form 
in  such  cases  becomes  substance.    Anon.,  63  Me.  590;  State  v. 
Fenlmon,  78  Me.  495;  State  v.  McConnick,  84  Me.  566;  Co7n. 
V.  liohi/,  12  Pick.  496;  Givena  v.  State,  supra;  Com.  v.  Tobin, 
mpra.    13y  the  common-law  procedure,  then,  the  verdict  of 
the  jury  was  orally  pronounced  in  open  court,  then  recorded 
by  the  clerk,  and  'affirmed  by  the  jury,  which  was  done  by 
that  officer  saying  to  them  to  hearken  to  their  verdict  as 
recorded  by  the  court,  and  repeating  to  them  what  had  been 
taken  down  for  record.    At  any  time  before  the  verdict  was 
recorded  the  prisoner  had  the  right  to  have  the  jury  polled,  in 
order  to  ascertain  whether  or  not  the  verdict  as  given  was 
unanimous,  and,  in  the  absence  of  a  polling,  any  member  of 


ti 


i 


♦I  -| 


(50 


AMERICAN  CRIMINAL  REPORTS. 


the  jury  had  the  right  sua  sjMnte,  to  recede  from  the  verdict 
as  agreed  on  at  any  time  before  it  was  recorded.  As  the  jury 
had  the  right  to  depart  from  any  finding  before  it  was  recorded 
and  affirmed  by  them,  the  only  complete  verdict  in  a  case  was 
that  recorded  by  the  court.  10  Bac.  Abr.,  tit.  "  Verdict."  (G,) 
p.  31.5;  Co  fee  v.  Groover,  20  Fla.  61;  Jones  v.  State  (Ala.),  12 
South.  274;  Wright  v.  Fhillij)s,  2  G.  Green,  191;  Bk/iop  v. 
Muffler,  33  Kan.  145;  Jiurk  v.  Com.,  5  J.  J.  Marsh.  G«5;  State 
V.  Walters,  15  La.  Ann.  648;  Edelen  v.  Thompson,  2  liar.  &  G. 
31;  Fordv.  State,  12  IVId.  514;  Lawrence  v.  Stearns,  11  Pick.  501; 
Coin.  V.  Dowlhuj,  114  Mass.  259;  Com.  v.  Carrinyton,  110  Mass. 
37;  Lordv.  State,  16  N.  H.  325;  People  v.  Bush,  3  Parker  Cr. 
E.  552;  Dornick  v.  lie'ichenhack,  10  Serg.  &  R.  84.  It  may  be 
well  for  us  to  say  here,  in  order  to  guard  against  a  misti]>pre- 
hension,  that  we  do  not  determine  what  is  a  sufficient  record- 
ing of  the  verdict  returned  by  a  jury.  The  practice  prevalent 
in  this  state  is  for  the  jury  in  all  cases  to  write  out  their  finding, 
and,  after  announcing  in  o\)(m  court  that  they  have  agreed  upon 
their  verdict,  to  hand  the  paper  to  the  clerk,  and,  after  it  is 
read  aloud  by  that  officer,  the  jury  affirm  it,  and  from  this 
paper  the  permanent  record  is  made.  The  point  for  decision 
in  the  present  case  does  not  make  it  necessary  for  us  to  pass 
upon  the  propriety  of  the  practice  referred  to,  as  it  is  clear 
from  the  record  that  the  first  finding  of  the  jury  was  not 
accepted  by  the  court  for  record.  The  judge  refused  to  receive 
the  verdict  when  given  by  the  jury,  and  they  were  instructed 
to  retire,  and  present  a  verdict  in  proper  form.  Thereupon 
they  retired,  and  brought  in  another  and  different  verdict.  The 
first  verdict  was  never  recorded,  nor  does  it  a])pear  from  the 
record  before  us  that  it  had  ever  been  affirmed  as  the  unani- 
mous finding  of  the  jury.  The  jury  having  retired  and  brought 
in  a  different  verdict,  which  was  recorded,  it  can  not  be  held 
that  the  first  is  the  verdict  of  the  jury,  or  that  it  has  any 
validity  whatever.  The  case  was  still  in  the  hands  of  the  jury 
upon  their  second  retirement,  and,  not  being  bound  by  their 
former  action,  they  were  at  liberty  to  review  the  case,  and 
bring  in  an  entirely  new  verdict.  "Whether  the  action  of  the 
court  in  refusing  to  have  the  first  verdict  recorded  in  the  proper 
way  was  an  unauthorized  interference  with  the  province  of  the 
jury  is  another  question,  which  will  presently  be  considered, 
but,  confining  ourselves  to  the  effect  of  the  first  findinjr,  as 


^n 


GRANT  V.  STATE. 


«.jJ 


given  by  the  jury,  it  can  not  be  affirmed  on  this  record  that  it 
IS  of  any  validity  whatever.  This  being  the  case,  we  must 
turn  our  attention  to  the  objections  urged  against  the  verdict 
that  was  accepted  and  recorded  by  the  court. 

The  refusal  of  the  court  to  receive  the  first  verdict,  and  the 
acceptance  and  record  of  the  second  one,  are  alleged  as  errors 
in  the  motion  for  a  new  trial.  It  is  stated  in  Whiirt.  Cr.  PI. 
§  751,  that  "if  there  is  any  informality,  uncertaintv, or  impro^ 
priety  about  a  verdict,  the  court  may  require  the  jury  to  amend 
it  before  they  separate."  And  it  may  be  stated  generally  that 
when  a  jury  returns  an  informal,  insensible,  or  a  repuonant 
verdict,  or  one  that  is  not  responsive  to  the  issues  submitted, 
they  may  be  directed  by  the  court  to  reconsider  it,  and  bring 
in  a  proper  verdict.  Thus,  when  the  verdict  is  guilty  al 
charged,  where  the  indictment  is  for  murder,  and  the  statute 
requires  the  degree  of  the  offense  to  be  ascertained  in  the  find- 
ing of  the  jury,  the  court  may  tell  the  jury  that  tlieir  verdict 
is  not  in  proper  form,  and  that  they  must  retire,  and  designate 
in  which  degree  they  find  the  prisoner  guilty.  People  v.  Bon- 
ne}/, 19  Cal.  420.  And  so  the  court  may  intercede,  and  have 
the  jury  correct  any  informal  or  insensible  verdict.  State  v. 
Waterman,  1  Nev.  543;  Cook  v.  State,  26  Ga.  593;  Gipson  v. 
State,  38  Miss.  295;  Nemo  v.  Com.,  2  Grat.  558;  Zeve/h  o.  Statu, 
32  Ark.  585;  Re(j.  v.  Vodden,  6  Cox,  Cr.  Gas.  226;  Be{/.  v.  Jleam/, 
9  Cox,  Cr.  Gas.  231.  While  it  is  entirely  clear  that  the  trial 
judge  may  send  a  jury  back  to  the  consultation  room  for  the 
purpose  of  correcting  their  finding  as  to  matters  of  informality, 
uncertainty,  and  where  the  issue  has  not  been  passed  upon  by 
them,  yet  the  judge  must  not  even  suggest  the  alteration  of  a 
verdict  in  substance.  The  action  of  the  judge  in  the  correction 
of  verdicts  should  be  exercised  with  great  caution.  The  old 
practice  allowed  a  greater  exercise  of  authority  by  him  over 
verdicts  than  is  now  permissible.  1  Chit.  Cr.  Law,  648;  JIc- 
Connell  v.  Linton,  4  Watts,  357.  The  judge  must  not  throw 
the  weight  of  his  influence  into  the  deliberations  of  the  jury  as 
to  matters  exclusively  within  their  province.  Garner  v.  State, 
28  Fla.  113,  9  South.  835;  Pimonv.State,  28  Fla.  735,  9  South. 
706.  Can  it  be  said  that  the  action  of  the  judge  in  the  case 
before  us  improperly  influenced  the  jury  in  returning  the  verdict 
upon  which  judgment  was  entered  ?  The  first  finding  brought 
into  court  was  for  manslaughter  in  the  first  degree,  and  the 


^il 


'V: 


752 


AMERICAN  CRIMINAL  REPORTS. 


judge  refused  to  receive  it,  and  told  the  jury  in  effect  that  it  was 
not  in  such  form  as  that  the  court  could  receive  it,  there  being 
no  degrees  in  manslaughter,  and  that  they  must  retire,  and 
present  a  verdict  in  proper  form.  We  can  not  say  that  the 
judge,  in  what  he  said  to  the  jury,  suggested  to  them  the  sub- 
stance of  vrhat  should  be  their  verdict,  as  he  ex}>ressly  stated 
that  the  verdict  was  defective  in  form.  The  defect  as  to  form 
is  pointed  out,  it  being  a  finding  for  manslaughter  in  the  first 
degree,  when  there  were  no  degrees  in  manslaughter.  The 
direction  was  to  retire,  and  present  a  verdict  in  proper  form. 
There  is  nothing  he.  e  to  indicate  the  character  of  verdict  to  be 
returned,  except  that  one  for  manslaughter  in  the  first  ilegree 
was  not  in  proper  form.  It  there  was  any  error  on  the  part  of 
the  judge,  it  was  in  refusing  to  receive  the  first  verdict  as  pre- 
sented, and  in  not  proceeding  to  affirm  it  in  the  proper  way. 
It  is,  of  course,  true  that  when  a  complete  formal  verdict  is 
returned  by  the  jury,  the  court  has  no  discretion  in  the  matter, 
and  must  proceed  to  affirm  it.  In  the  case  before  us,  the  find- 
ing of  manslaughter  in  the  first  degree  was  technically  informal, 
as  there  are  no  degrees  of  manslaughter,  although  we  are  of 
the  opinion  that  such  a  verdict  was  in  legal  effect  one  of  man- 
slaughter, and  the  court  might  have  regarded  the  words  "  in  the 
first  degree  "  surplusage,  and  proceeded  to  affirm  the  verdict. 
We  can  not  say,  however,  that  the  court  erred  in  referring  the 
matter  to  the  jury  for  correction  in  the  particular  mentioned; 
and  when  this  was  done  they  had  the  right  to  reconsider  the 
case  and  bring  in  a  new  verdict.  What  is  said  disposes  of  all 
objections  to  the  verdict. 

The  remaining  point  presented  by  counsel  for  plaintiff  in 
error  relates  to  the  sufficiency  of  the  evidence  to  sustain  the 
verdict.  There  is  no  question  about  the  fact  that  the  accused 
shot  and  killed  the  deceased,  but  it  is  insisted  that  the  testi- 
mony does  not  justify  the  inference  that  the  killing  was  done 
with  a  premeditated  design  to  effect  the  death  of  the  de- 
ceased. 

A  majority  of  the  court  are  impressed  with  the  view  that 
the  testimony  in  the  record  before  us  is  not  sufficient  to  sustain 
the  verdict  of  murder  in  the  first  degree.  As  the  case  has  to 
be  tried  again,  it  is  deemed  best  to  omit  any  discussion  of  the 
testimony  in  this  opinion. 

The  judgment  is  reversed,  and  a  new  trial  awarded;  and  it 
will  be  ordered  accordingly. 


^ 


GRANT  V.  STATE. 


753 


that 
istain 
as  to 
f  the 

nd  it 


Note.— Ferdicf  imlneed  by  lyromise  of  clemency  by  court.— In  McBcnn 
V.  State  (Wis.),  53  N.  W.  Rep.  497,  the  jury,  after  retiring,  naked  the  court, 
through  their  foreman,  wliether.  in  case  of  a  verdict  of  Ruilty,  tliey  niiglit 
depend  upon  tlie  clemency  of  the  court,  and  the  latter  sent  back  word  tliat 
they  might.  Tlje  jury  rendered  a  verdict  of  guilty,  adding  a  recommenda- 
tion to  mercy.  Judgment  upon  the  verdict  was  reversed,  Cassady,  J.,  say- 
ing: 

"  Had  the  learned  trial  judge,  during  the  delivery  of  his  charge,  or  at  its 
conclusion,  and  in  open  court,  given  such  an  answer  to  such  a  ([uestion  put 
by  a  juryman,  no  one,  we  apprehend,  would  have  contended  that  it  was  not 
error.     No  attempt  has  here  hucn  made  to  justify  such  an  answer  to  sucli  a 
question.    It  is  said,  in  effect,  that  such  communications  are  not  made  to 
appear  by  competent  evidence,  since  no  affidavit  of  the  person  in  charge  of 
the  jury  was  \)re8ented.     But  the  judge  who  certified  to  the  record  neces- 
sarily knew  whether  he  had  received  any  such  communication  from  the 
jury,  and  also  whether  he  answered  in  the  v.ay  stated,  and  the  affidavits  of 
the  jurymen  show  that  they  received  such  answer.    It  is  contended  that 
such  affidavits  of  jurymen  were  inadmissible  in  evidence  un<ler  the  ruling 
of  this  court  in  Etminton  v.  Garrison,  18  Wis.  594.    It  was  there  lield  that 
the  affidavits  of  jurors  to  their  own  misconduct  can  not  be  received  to  im- 
peach their  verdict.    Such  is,  undoubtedly,  tlie  general  rule.    But  to  arbi- 
trarily exclude  all  such  affidavits  whenever  they  directly  or  indirectly  affect 
tlie  verdict  would  be  a  gross  wrong  to  jurymen,  as  well  as  parties,  and 
would  frequently  defeat  the  ends  of  justice.    Thus,  affidavits  of  jurors  have 
been  held  admissible  to  prove  a  mistake  or  ei  ror  of  the  foreman  in  announcing 
the  verdict.     Cogan  v.  Ebden,  1  Burr.  383;  Dulrymple  v.  W'UUams,  G3  N.  Y. 
331.     So  they  have  been  held  admissible  to  prove  a  mistake  made  by  the 
clerk  in  entering,  or  the  court  in  directing,  a  verdict  different  from  that 
found.    Jackson  v.  Dickenson,  15  Johns.  (N.  Y.)  309.    So  they  have  been 
held  admissible  to  prove  a  mistake  in  returning  a  verdict  for  the  wrong 
partv  or  for  a  larger  or  smaller  sum  than  intended.    Little  v.  Larrabce,  2 
Graenl.  (Me.)  37.     So  they  have  been  held  admissible  to  prove  that  the  ver- 
dict was  for  one-twelfth  of  the  aggregate  amount  of  the  several  sums  which 
each  juryman  determined  to  be  the  true  amount.     Elledge  v.    Todd,   1 
Humph.  (Tenn.)43.    So  tliey  have  bet'n  held  admissible  to  prove  the  mis- 
conduct of  a  party  or  the  officer  having  them  in  charge.     Thomas  v.  Chap- 
man, 45 Barb.  (N.  Y.)  98.    So  they  have  been  held  admissible  to  prove  that 
some'  of  the  jury  were  not  satisfied  of  the  prisoner's  guilt,  and  iussented  to 
the  verdict  only  because  they  believed  that  the  recommendation  to  mercy 
which  they  made  at  the  time  of  return hig  their  verdict  would  be  effectual. 
Crawford  v.  State,  3  Yerg.  (Tenn.)  60,  34  Am.  Dec.  407,  and  cases  cited  in 

the  note. 

In  this  last  case  the  judgment  was  reversed  because  it  appeared  from 
such  affidavits  that  the  honest  conclusions  of  some  of  the  jury  had  been 
overcome  by  such  extraneous  considerations,  and  hence  the  decision  goes 
much  further  than  we  are  here  asked  to  go.  The  belief  of  the  jurymen  in 
that  case,  that  their  recommendation  to  mercy  would  be  effectual,  was 
th'^re  likened  unto  a  contract  procured  from  an  individual  by  mistake  and 
misrepresentation;  and  yet  it  does  not  apjiear  that  the  trial  judge  in  that 
case  made  any  pledge  of  mercy,  as  here.    The  question  put  by  the  jury  to 

48 


flit 


754 


AMERICAN  CRIMINAL  REPORTS. 


the  trial  judge  in  the  case  at  bar  was,  in  and  of  itself,  harmless.  The  error 
consists  of  tlie  promise  made  by  the  trial  judge  to  the  jury,  to  the  effect 
that  if  they  found  McBean  guilty  they  might  rely  upon  him  to  extend  the 
clemency  of  the  court  to  the  prisoner.  It  sufficiently  appears  from  the  ver- 
dict returned  that  the  jury  did  rely  upon  such  promise.  The  promise  thus 
secured  was  well  calculated  to  overcome  reasonable  doubts  and  coerce  an 
agreement  for  conviction.  It  was  an  unauthorized  interference  with  the 
deliberations  of  the  jury.  liyan  v.  Inm ranee  Co.,  77  Wis.  611;  46  N.  W. 
Rep.  885.  '  A  verdict  is  a  declaration  of  the  truth  as  to  the  matters  of  fact 
submitted  to  the  jury.'  Shenners  v.  Street  Railway  Co.,  78  Wis.  .187;  47 
N.  W.  Rep.  632.  To  be  such  truth,  however,  it  must  be  based  wholly  upon 
the  evidence  in  the  case.  A  verdict  in  disregard  of  such  evidence,  in 
whole  or  in  part,  is  a  false  verdict.  It  follows  that  any  promise,  pledge  or 
declaration  of  the  trial  judge  calculated  to  draw  the  attention  of  the  jury 
away  from  the  evidence  and  to  induce  them  to  base  their  verdict  upon 
some  ulterior  consideration,  is  necessarily  misleading  and  erroneous." 

Setting  aside. — A  verdict  will  not  be  set  aside  on  the  ground  of  mis- 
conduct of  the  foreman  of  the  jury,  wliere  one  of  the  jurors  makes 
affidavit  that  during  the  deliberation  of  the  jury  the  foreman  exerted  Iiim- 
self  to  secure  a  conviction.  It  will  not  do  to  set  aside  venlicts  merely  be- 
cause jurors,  during  a  trial,  obtain  information  as  to  the  character  of  liti- 
gimts.  or  those  standing  in  the  relation  of  litigtants,  without  the  fault  of 
the  parties,  unless  there  are  reasons  to  believe  that  because  of  such  infor- 
mation the  trial  has  been  unfair.  In  such  matters  the  trial  court  is  neces- 
sarily invested  with  a  large  discretion.  Prejudice  is  not  to  be  presumed  at 
all  times  because  of  misconduct.  State  v.  Woodson,  41  Iowa  425.  Just 
when  it  will  or  will  not  be  presumed  can  not  be  definitely  determined. 
Conceding  all  that  should  be  claimed  as  to  people  being  unconsciously  in- 
fluenced by  words  or  acts  of  others,  and  the  situation  is  not  changed.  In 
some  cases  the  law  will  assume  prejudice,  and  in  others  not.  Although  it 
is  a  civil  case,  the  rule  announced  in  McCash  v.  City  of  Burlington,  72 
Iowa  26,  is  controlling  as  to  that  point.  In  line  with  tliese  conclusions  are 
the  following  cases :  Martin  v.  People,  54  III.  225;  MeKenzie  v.  State,  20 
Ark.  334;  State  v.  Fruge,  28  La.  Ann.  057;  Barlotv  v.  State,  2  Blackf.  114; 
Flanegan  v.  State,  64  Ga.  53;  Hill  v.  State,  Id.  453;  2  Thomp.  Trials,  §  2553. 


Ex  Parte  Buskett. 


(106  Mo.  602.) 

\ViriiE.sr,— Criminating  evidence— Gambling. 

Tlie  provision  of  Const.,  art.  2,  §  23,  that  "no  person  shall  be  compelled  to 
testify  against  himself  in  a  criminal  cause,"  does  not  exempt  a  witness 
from  disclosing  the  names  of  others  than  himself  who  have  engaged  in 
gaming,  since  immunity  is  afforded  him  by  Rev.  St.  1889,  S8819,  which 
provides  that  no  pereon  shall  be  excused  from  testifying  touching  any 


fn 


EX  PARTE  BUSKETT. 


755 


offense  committo.l  by  another  against  the  gaming  act  by  reason  of  liis 
having  played  at  any  of  the  prohibited  games,  "but  the  testi.uonv 
which  may  be  given  by  sucli  person,  shall  in  no  case  be  used  against 
hini."  ° 

Petition  for  writ  of  habeas  corpus  by  J.  L.  Buskett.    Teti- 
tion  denied. 


Hi 


J.  B.  Harrison  and  T.  J.  Jones,  for  petitioner. 

Macfariane,  J.  This  is  an  application  by  petition  of  J.  L. 
Buskett  for  release  on  writ  of  hal)oas  corpus  from  the  custody 
of  JoVip  W.  Cooper,  sheriff  of  Phelps  county,  and  from  tlie 
common  jail  of  said  county,  in  which  he  is  confined.  The  peti- 
tion and  attached  record  show  that  petitioner  was  summoned 
before  the  grand  jury  of  Phelps  county  as  a  witness,  and  was 
asked  if  he  knew  the  names  of  any  parties  or  persons  who  have 
been  gambling  with  cards  or  otherwise  in  Phelps  county  within 
the  last  year.  To  this  question  he  answered,  "  Yes."  Peti- 
tioner was  then  asked  who  they  were,  other  than  himself. 
This  question  the  witness  refused  to  answer,  giving  as  a  reason 
for  such  refusal  that  the  answer  would  criminate  himself,  and 
"  would  lead  to  the  divulging  of  evidence  that  would  convict " 
him  of  the  misdemeanor.  The  fact  of  the  refusal  to  answer 
was  duly  communicated  to  the  court.  The  court  decided  that 
the  question  was  proper,  and  that  petitioner  should  answer,  in- 
forming him  at  the  same  time  that  his  testimony  should,  in  no 
case,  be  used  against  him.  Still  refusing  to  answer,  he  was 
adjudged  guilty  of  a  contempt,  and  a  fine  of  $25  imposed  upon 
him.  In  default  of  payment  of  the  fine,  he  was  ordered  com- 
mitted to  the  county  jail  until  the  fine  should  be  paid.  From 
this  confinement  he  asks  to  be  discharged. 

Petitioner  insists  that  he  was  privileged  to  refuse  to  answer 
the  question,  on  the  ground  of  the  protection  guarantied  him 
by  section  23  of  the  bill  of  rights,  which  provides  that  "  no 
person  shall  be  compelled  to  testify  against  himself  in  a  crim- 
inal cause."  On  the  other  hand,  the  state  contends  that  ample 
])rotection  was  afforded  petitioner  under  section  3819,  which  is 
as  follows:  "No  person  shall  be  incapacitated  or  excused 
from  testifying  touching  any  offense  committed  by  another, 
against  any  of  the  provisions  relating  to  gaming,  by  reason  of 
his  having  betted  or  played  at  any  of  the  prohibited  games  oi- 


I  I 


'•I    ! 


75G 


AMERICAN   CRIMINAL  REPORTS. 


'W 


gaming  devices,  but  the  testimony  which  may  be  given  by 
such  person  shall  in  no  case  be  used  against  him."  Petitioner 
insists  that  this  statute  infringes  his  rights  under  the  said 
section  of  the  constitution,  and  is  therefore  void.  Waiving  the 
inquiry  in  this  case,  whether  the  validity  of  the  judgment  im- 
posing the  fine  on  petitioner  could  be  inquired  into  or  impeached 
in  this  collateral  proceeding,  and  whether  an  ap])eal  or  writ  of 
error  would  lie  from  the  judgment,  we  will  consider  the  real 
question  in  the  cuse. 

Petitioner  claims  that  section  23  of  the  bill  of  rights,  pro- 
vidinsr  that  "  no  person  shall  be  compelled  to  testify  against 
himself  in  a  criminal  cause,"  gives  him  the  absolute  right  to 
refuse  answering  any  question,  or  giving  any  testimon}-,  which 
Avould  either  tend  directly  to  prove  him  guilty  of  a  crime,  or 
would  afford  information  or  point  out  sources  of  information 
wiiich  might  lead  to  fastening  a  crime  upon  himself;  that  sec- 
tion 3819  falls  short  of  giving  him  that  full  and  complete  in- 
demnity against  prosecutions  for  crimes  about  which  he  may 
be  called  to  testify,  and  which  may  be  indirectly  disclosed  by 
the  evidence  given ;  and  that  said  section  is,  for  that  reason, 
in  conflict  with  section  23  of  the  bill  of  rights,  and  is  without 
force  or  validity.  The  common  law  maxim,  which  is  tiius  in- 
corporated in  the  constitution  of  the  state,  has  ever  been 
estimated  and  held  as  one  of  the  most  sacred  personal  rights 
jruarantied  the  citizens  of  this  countrv  and  of  Eii'i'land.  It 
finds  a  place  in  every  state  constitution,  as  well  as  in  that 
of  the  United  States,  and  should  therefore  receive  such  liberal 
construction  as  will  secure  to  the  citizen  its  full  protection 
against  inquisitorial  oppression.  The  right  tluis  secured  would 
be  but  an  empty  mockery  if  its  privileges  could  be  impaired 
under  a  pretense  of  legislative  regulation. 

It  becomes  proper,  then,  briefly  to  inquire  into  the  extent 
of  the  privilege  thus  accorded,  in  the  absence  of  any  statutory 
protection,  and  see  wliat,  if  any,  rights  are  infringed.  In 
People  V.  Ilaclley,  24  N.  Y,  74,  Denio,  J.,  in  considering  a  like 
provision  of  the  constitution  of  New  York,  says:  "The  his- 
tory of  England  in  early  periods  furnishes  abundant  instances 
of  unjustifiable  and  cruel  methods  of  extorting  confessions; 
and  the  practice  at  this  day  in  the  criminal  tribunals  of  the 
most  polished  countries  in  continental  Europe  is  to  subject  an 
accused  person  to  a  course  of  interrogatories  which  would  be 


?.»,»«. ilK 


"Tn- 


EX  PxVRTE  BUSKETT. 


|U( 


quite  revolting  to  a  mind  accustomed  only  to  the  more  humane 
system  of  English  and  American  criminal  Uuv.  It  was  not, 
therefore,  unreasonahle  to  guard,  by  constitutional  sanctions, 
against  repetition  of  such  practices  in  this  state ;  and  it  is  not 
at  all  improbable  that  the  true  intention  of  the  provision  in 
question  corresponds  with  the  natural  construction  of  the  lan- 
guage. J5ut  there  is  great  force  in  the  argument  that  consti- 
tutional provisions,  devised  against  governmental  oppressions, 
and  especially  against  such  as  may  be  exercised  under  pretense 
of  judicial  power,  ought  to  be  construed  with  the  utniost  liber- 
ality, and  to  be  extended  so  as  to  accomplish  the  full  object 
which  the  author  aj^parently  had  in  view,  so  far  as  it  can  be 
done  consistently  with  any  fair  interpretation  of  the  languao-e 
employed.  The  mandate  that  an  accused  person  should  not 
bo  compelled  to  give  evidence  against  himself  would  fail  to 
secure  the  whole  object  intended,  if  a  prosecutor  might  call  an 
accomplice  or  confederate  in  a  criminal  otfense,  and  afterwards 
use  the  evidence  he  might  give  to  procure  a  conviction  on  the 
trial  of  an  indictment  against  him."  The  question  came  be- 
fore this  court  in  a  very  early  day  in  Ward  v.  State,  2  Mo.  120, 
in  which  McGirk,  C.  J.,  wrote  the  opinion  of  the  court.  Tlie 
facts  in  the  case  were  similar  to  those  shown  by  this  record. 
A  witness  before  the  grand  jury  was  asked,  "  Do  you  know  of 
any  person  or  persons  having  bet  at  a  faro  table  in  this  county 
within  the  last  twelve  months? "  to  which  the  witness  answered, 
"  I  do."  The  witness  w\is  then  asked  to  tell  what  person  or 
persons  have  so  bet  other  than  himself.  The  witness  declined 
answering  this  question,  saying  he  could  not  answer  without 
implicating  himself.  The  question  before  the  court  was 
whether  the  witness  could  bo  required  to  answer.  The  court 
adopted  the  rule  laid  down  by  Chief  Justice  Marshall  in  Burr's 
Trial,  215 :  "  That  it  is  the  province  of  the  court  to  judge 
whether  any  direct  answer  to  the  question  that  may  be  pro- 
posed will  furnish  evidence  .against  the  witness.  If  such  an- 
swer may  disclose  a  fact  which  forms  a  necessary  and  essential 
link  in  a  chain  of  testimony  which  would  be  sufficient  to  con- 
vict him  of  any  crime,  he  is  not  bound  to  answer  it  so  as  to 
furnish  matter  for  that  conviction.  In  such  case  the  witness 
must  himself  judge  what  his  answer  will  be,  and  if  he  say  on 
his  oath  he  can  not  answer  without  accusing  himself,  he  can  not 
be  compelled  to  answer."     It  is  said  by  the  Supreme  Court  of 


U 


■758 


AMERICAN  CRIMINAL  REPORTS. 


Virginia,  {Kenilriek  v.  Com.,  78  Va.  493,)  in  speaking  of  a  sim- 
ilar provision  of  the  constitution  of  that  state,  "  It  ought  to 
be  construed  with  tlie  utmost  liberality  consistent  with  the 
due  execution  of  the  laws  and  the  safety  of  society.  But, 
while  it  is  a  settled  maxim  of  law  that  no  man  is  bound  to 
criminate  himself,  it  is  also  a  rule  of  law  and  necessity  of  pub- 
lic justice  that  every  person  is  compellable  to  bear  testimony 
in  the  administration  of  the  laws  by  the  duly-constituted  courts 
of  the  country."  This  court,  in  State  v.  Talhott,  73  Mo.  357, 
cites  approvingly  the  rule  given  by  Gieenleaf  in  his  work  on 
Evidence  (Vol.  1,  S.  450 ):  "  Where  the  answer  will  have  a  tend- 
ency to  expose  the  witness  to  a  penal  liability,  or  to  any  kind 
of  punishment,  or  to  a  criminal  charge,  the  witness  is  not  bound 
to  answer." 

It  will  be  seen  by  these  decisions  that  the  protection 
given  the  witness  under  the  constitution  has  not  been  con- 
strued literally,  and  confined  to  an  exemption  from  testifying 
in  a  criminal  proceeding  in  which  he  himself  is  prosecuted,  but 
has  been  extended  to  protect  hira  in  all  cases  in  which  his  evi- 
dence would  prove  "  a  necessary  and  essential  link  in  a  chain 
of  testimony,  which  would  be  sufficient  to  convict  liim  of  crime." 

The  question  then  arises,  does  the  statute  afford  the  witness 
protection  and  immunity  equal  to  that  afforded  him  under  the 
constitution  ?  If  it  does  so,  then  section  3819  does  not  de- 
prive petitioner  of  any  constitutional  right  or  privilege^  and 
is  valid.  There  can  be  no  doubt  that  the  language  of  the  stat- 
ute granting  protection,  that  "  the  testimony  which  may  be 
given  by  such  person  shall  in  no  case  be  used  against  him,"  is 
as  broad  as  the  constitutional  privilege,  "that no  person  shall 
be  compelled  to  testify  against  himself  in  a  criminal  cause." 
It  might  therefore  be  sufficient  to  hold,  as  was  done  by  Brown, 
J.,  in  U.  S.  V.  McCarthy,  18  Fed.  Eep.  89,  "The  reason  of 
the  former  rule  exempting  witnesses  from  giving  compulsory 
testimony  against  themselves,  was,  that  their  testimony  might 
be  used  to  convict  them.  The  statute  above  quoted,  in  pre- 
venting all  possible  use  of  testimony  thus  given,  does  away 
with  the  reason  of  the  rule;  and  there  is,  therefore,  no  longer 
any  ground  for  its  application."  But  in  this  case  what  fact 
could  have  been  disclosed  by  petitioner  in  his  testimony 
which  could  have  been  used  as  a  link  in  a  chain  of  evidence, 
upon  which  he  might  have  been  convicted  of  a  criminal  of- 


.'tl'. 


EX  PARTE  BUSKETT. 


759 


fense,  against  the  use  of  which,  in  a  trial  ai?ainst  lilmsolf,  he 
was  not  given  as  full  protection  as  the  constitution  alforded 
him  ?  He  was  fully  protected  against  the  use  of  any  aihnis- 
sions  or  declarations  he  may  have  made  against 'himself. 
Sui)pose  he  had  answered  that  he  had  seen  A  and  13  gambliiur 
with  cards.  What  fact  would  have  been  disclosed  that  could 
have  "  formed  a  link  in  a  chain  of  evidence  "  against  himself  i 
To  look  on  at  others  gaming  is  not  a  criminal  offense,  sub- 
jecting the  observer  to  prosecution. 

It  is  insisted,  however,  and  this  is  the  main  contention,  that 
facts  might  be  disclosed  which  would  atford  facilities  for  fast- 
ening the  guilt  upon  the  witness.  Thus,  it  is  contended,  if 
witness  should  have  answered  that  he  had  seen  A  and  13  gam- 
ing, then  they  could  be  called  as  witnesses  to  prove  that  i)eti- 
tioner  was  at  the  same  time  engaged  in  gaming.  It  will  bo 
seen  that  this  illustration  assumes  a  case  outside  the  protection 
of  the  constitution  itself,  as  most  liberally  interpreted.  The 
court,  in  the  case  of  Peojde  v.  IlacMey,  supra,  speaking  on  this 
possibility,  says:  "But  neither  the  law  nor  the  constitution 
is  so  sedulous  to  screen  the  guilty  as  the  argument  supposes. 
If  a  man  can  not  give  evidence  upon  the  trial  of  another  per- 
son without  disclosing  circumstances  which  will  make  his  own 
guilt  apparent,  or,  at  least,  capable  of  proof,  though  his  ac- 
count of  the  transaction  should  never  be  used  as  evidence,  it  is 
the  misfortune  of  his  condition,  and  not  any  want  of  humanity 
in  the  law." 

Eeferring  again  to  the  opinion  of  McGirk,  C.  J.,  in  case 
of  Ward  v.  State,  snjira,  his  concluding  observations  meet 
directly  the  point  here  urged:  "But  in  this  case, it  is  said, 
if  the  witness  is  bound  to  tell  who  bet  at  the  game,  with- 
out naming  himself,  then  those  persons  who  are  named  will 
be  examined  as  to  the  fact  whether  he  bet;  and,  if  the  witness 
is  not  compelled  to  name  who  did  bet,  then  they  Avill  remain 
unknown  to  the  grand  jury,  and  can  not  be  examined  whether 
the  witness  bet.  I  understand  this  doctrine  to  be  grounded 
more  on  the  fear  of  retaliation  than  on  any  sound  principle  of 
law.  Will  the  law  permit  a  man  to  keep  offenses  and  offend- 
ers a  secret,  lest  the  offenders  should  in  their  turn  give  evi- 
dence against  him  ? "  We  think  the  protection  of  the  statute 
oo-extensive  with  that  intended  to  be  afforded  by  the  constitu- 
tion.   We  are  supported  in  this  conclusion  by  the  following 


I 

ii 


700 


AMERICAN  CRIMINAL  REPORTS. 


cases,  and  others  cited  in  32  Cent.  Law  J.  3fi8,  construing  like 
statutes:  /State  v.  Quarles,  13  Ark.  307;  Kneeland  v.  State,  62 
Ga.  397;  Wdklns  v.  Malone,  14  Ind.  1.53;  In  re  Connselman, 
41:  Fed.  Rep.. 208.  Ordered  tliat  petitioner  be  remanded  to 
custody.     All  concur. 


Note. — Exemption  from  self-crim'nniinn. — A  witness  beforo  Rrniul  jury, 
if  nskod,  must  tell  wluitotiiers  beHides  himself  Imve  been  gambling.  Ward 
V.  State,  2  Mo.  120;  contra,  Miiiter  v.  I'eoi>le,  V.id  111.  303.  The  variance  l)e- 
tween  the  decisions  obtaining  in  the  different  stfit.es  is  marked.  Kendrick  v. 
Com.,  78  Va.  483,  Cullenv.  Coin.,  24Gratt.  024.  and  Emeuey'a  (Jase,  107  Mass. 
172.  hold  that  a  witness  is  exempt  from  testifying  as  to  criminal  acts  of 
othei-s,  if,  in  so  testifying,  he  will  criminate  himself,  notwithstanding  a  stat- 
ute providing  that  such  evidence  shall  not  be  used  against  him.  The  oppo- 
site doctrine  is  laid  down  in  State  v.  Qaarlen,  13  Ark.  307;  Higden  v,  Hoord, 
14  Ga.  255;  Kneeland  v.  State,  02  Ga.  395;  Frazeev.  State,  58  Ind.  8;  J'ci>2)le 
V.  Kelleii,  24  N.  Y.  74;  Bedgond  v.  State,  1 15  Ind.  275. 

The  Supreme  Court  of  the  United  State ;  held,  in  Counnelman  v.  Hitch- 
cock, 143  U.  S.  547.  that  a  witness  before  a  grand  jury  is  exempt  from 
answering  criminating  questions,  although  his  answers  could  not  be.  under 
the  statute,  used  against  him  in  a  criminal  prosecution,  thus  reveraing  In  lie 
CounHelnian,  14  Fed.  Rep.  208,  and  overruling  U.  S,  v.  McCarthy,  18  Fed. 
87,  {J.  S.  V.  Brown,  1  Sawy.  531,  and  U.  S.  v.  Three  Tons  of  Coal,  0  Biss. 
379,  upon  this  point. 

These  constitutional  and  statutory  provisions  have  long  been  regarded 
as  safeguards  of  civil  liberty,  quite  iis  sacred  and  important  as  the  privileges 
of  the  writ  of  habeas  corpus  or  any  of  the  other  fundamental  guaranties  for 
the  protection  of  peraonal  rights.  When  a  proper  case  arises,'they  should  be 
applied  in  a  broad  and  liberal  spirit,  in  order  to  secure  to  the  citizen  that 
immunity  from  every  species  of  self-accusation  implied  in  the  brief  but  com- 
prehensive language  in  which  they  are  expressed.  The  security  which  they 
afford  to  all  citizens  against  the  zeal  of  the  public  prosecutor,  or  public 
clamor  for  the  punishment  of  crime,  should  not  be  impaired  by  any  narrow 
or  technical  views  in  their  application  to  such  a  stsite  of  facts  as  a|)pears 
from  the  record  before  us.  The  right  of  a  witness  to  claim  the  benefit 
of  these  provisions  has  frequently  been  the  suliject  of  adjudication  in  both 
the  federal  and  state  courts.  The  principle  established  by  these  decinions 
is  that  no  one  shall  be  compelled  in  any  judicial  or  other  i)roceedin{;8 
against  himself  or  upon  the  trial  of  issues  between  others  to  disclose  facts 
or  circumstances  that  can  be  used  against  him  as  admissions  tending  to 
prove  his  guilt  or  connection  with  any  criminal  offense  of  which  he  may 
then  or  afterwards  be  charged,  or  the  sources  from  which,  or  the  means 
by  which,  evidence  of  its  commission  or  of  his  connection  with  it  may  be 
obtained.  The  cases  cover  the  point  so  completely  that  no  comment  or 
explanation  is  necessary;  and  it  would  not  be  useful  to  quote  at  much 
length  from  the  language  in  which  the  decisions  are  expressed.  State  v. 
Noioell,  58  N.  H.314;  Ex  parte  Boscoivitz,  84  Ala.  403;  Temple  v.  Com.,'ii 
Va.  892;  Printz  v.  Cheeney,  11  Iowa  409;  People  v.  Mather,  4  Wend.  230; 
People  V.  Hackley,  24  N.  Y.  84;  PeojAe  v.  Sharp,  107  N.  Y.  427;  1  Burr's 
Trial,   245. 


!  »  '.I 


EX  PARTE  BUSKETT. 


7r,i 


The  question  was  fully  .lmcusH..cl  at  an  oarly  .lay  by  Cl.ief  JuHticv  Mai- 
shall  on  the  trial  of  Aaron  Bmr.  an.l  .n-.-rv  pluwo  of  it  ,o  f-illv  ox- 
plaineil  and  exhausted  that  his  views  wfrc  lolK.wwl  in  the  siihsenue'nt 
decisions.  A  sinale  quotation  from  tlio  laii  .11  i^c,  us..,l  will  iUastrite  tho 
scope  an.l  extentof  the  immunity  wlueh  thewitiUHs  cun  lawfully  fhU,,,. 
"  Many  links  fre.iu.>ntly  comi).,st.  that  chain  of  testiiiDnv  whi.h  is  iices-" 
sary  to  convict  an  individual  of  crime.  It  appi-ars  to  tl...  .■„urtt.)  l)e  the 
true  sense  of  the  rule  that  no  witness  is  cmpelled  to  furnish  aiiv  ..ne  of 
them  against  liimself.  It  is  certainly  not  only  a  possihl.-.  hut  a  prol.iihle 
case  that  a  witness,  by  discloninj,'  a  siiiKle  fact,  may  ompk.t..  th.>  testi- 
mony atjainst  himself,  an.l  U)  a  very  eltectual  puriDse  accuse  himst-if  as 
entirely  tus  he  would  by  stating  every  lircumstance  which  would  he  re.|uire.l 
for  his  conviction.  That  fact  of  itself  would  lie  unavailing,  hut  all  other 
facts  without  it  would  be  insutHcient.  While  that  renuiins  conceai.'d  in  his 
own  bosom  he  is  safe;  but  draw  it  from  theni'e,  and  he  is  expose.l  to  a  pros- 
ecution. The  rule  that  declares  that  n.)  man  is  ompellable  to  accuse  him- 
self would  most  obviously  be  infringe.l  by  coinjiellinK  a  witn.ss  to  disclose  a 
fact  of  this  description."  *  *  *  All  the  leading  authorities  w.re  elabo- 
rately reviewed  in  the  recent  case  of  Coumelman  v.  Hitcliwch,  mipra,  in 
the  supreme  court  of  the  United  States. 

The  court,  sustaining  the  privilege  contended  for  in  behalf  of  the  witness, 
held  that  the  object  of  the  constitutional  provision  was  t.>  insure  that  a 
person  shall  not  be  compelled,  when  acting  as  a  witness  in  any  investiga- 
tion, to  give  testimony  which  may  tend  to  show  that  he  himself  has  com- 
mitted a  crime;  and  that  its  meaning  was  that  a  witness  is  protccteil  from 
any  coin])ul8ory  disclosure  of  the  cir.-umstances  of  his  offense,  or  the 
source  from  which,  or  the  means  by  which,  evidence  of  its  commission,  or 
of  his  onnection  with  it,  may  be  obtaine.l,  or  made  effectual  for  his 
conviction,  without  using  his  answers  as  direct  admissions  against  him. 
This  conclusion  was  reached,  although  there  is  a  general  federal  statute 
providing  that  in  such  cases  the  testimony  given  by  ihe  witness  at  the 
investigation  shall  iu)t  he  given  in  evidence  against  him  sul)se.|uently  in 
any  civil  or  criminal  proceeding.  Rev.  St.  U.  S.  ti  8G0.  It  seems  that 
in  such  cases  nothing  short  of  abs.)lute  immunity  from  prosecution  can 
take  the  place  of  the  privilege  by  which  the  law  affords  protection  to  the 
witness.  The  testimony  which  the  relat^)r  voluntarily  gave  before  the  grand 
jury,  in  general  terms  exonerathig  himself  from  all  conn.'ction  with  the 
transaction,  seems  to  have  had  great  weight  with  the  learned  trial  judge. 
It  was  argued  that  the  relator  could  not  jtrobably  be  put  in  peril  by  his  an- 
swer to  the  question,  since  he  ha.l  already  testified  that  he  had  no  connection 
with  the  transaction.  But  this  conclusion  was  not  warranted  by  the  facts. 
The  testimony  of  the  witness  might  be  ever  so  strong  and  clear  in  favor  of 
his  innocence,  hut  it  did  not  conclude  the  public  prosecutor,  in  the  absence 
of  some  constitutional  or  statutory  provision,  securing  the  relator  from 
prosecution.  The  general  statements  of  a  person  charged  with  crime  in  re- 
gard to  his  innocence  avail  but  little  against  incriminating  facts  and  cir- 
cumstance. His  protestations  of  innocence,  and  his  broad  general  denial 
of  any  knowledge  of  or  connection  with  the  transaction,  might  be  over- 
come by  facts  and  circumstances, if  the  district  attorney  could  be  permitted 
to  draw  them  from  the  witness. 

Any  one  who  has  had  much  experience  in  the  conduct  of  criminal  trials 


11 


::;^ 


702 


AMERICAN  CRIMINAL  REPORTS. 


in  iiwnrp  of  the  fac^t  tliat  frwiiu'iitly  the  most  dangerous  proof  that  a  poroon 
cliarK«"l  witli  crime  luu  to  meet  are  liis  own  Mtatemeiitu  made  for  tlie  pur- 
IKjse  of  wardhiK  off  Himpieion  or  of  Hatisfying  others  with  regard  to  liis  iii- 
nocencc.  It  m  not  unuHual  on  Hueh  trialn  to  confront  the  accus(>d  witii  \m 
own  declarations  made  for  the  very  purpose  of  exonerating  liiniHeif  from  all 
Hiispicion,  but  which,  when  ail  the  evidence  is  collected,  are  so  far  at  war 
with  all  the  facts  and  circumstances  as  to  furnisli  evidence  of  guilt.  Tho 
witness,  by  answering  the  general  questions  as  to  his  connection  with  tho 
affair,  whether  his  answers  were  true  or  false,  does  not  waive  his  right  to 
remain  silent  when  it  is  sought  to  draw  from  him  some  fact  or  circum- 
btance  which,  in  his  judgment,  might  for^^  another  link  in  tho  chain  of 
facts,  and  capable  of  being  used  under  any  circumstances  to  his  detriment 
or  peril.  The  witness  who  knows  what  the  court  does  not  know,  and  what 
he  can  not  disclose  without  accusing  himself,  must  in  such  cases  judge  for 
himself  as  to  the  effect  of  his  answer;  and  if,  to  hia  mind,  it  nuiy  constitute 
a  link  in  the  chain  of  testimony  sutticient  to  convict  him  when  other  facts 
are  shown,  or  to  put  him  in  jeopardy,  or  subject  him  to  the  hazard  of  a 
criminal  charge,  indictment,  or  trial,  he  may  remain  silent.  While  the 
guilty  may  use  the  privilege  as  a  shield,  it  may  bo  the  main  protection  of 
the  innocent;  sinc,o  it  is  quite  conceivable  that  a  i)t»rson  may  bo  placed  in 
euch  circumstances,  connected  with  the  commission  of  u  criminal  offense, 
that,  if  required  to  disclose  other  facts  within  his  knowledge,  he  might, 
though  innoci-nt,  be  looked  upon  as  the  guilty  party.  Adams  v.  Lloyd,  3 
Hurl.  &,  N.  Htt3. 

The  weight  of  authority  seems  to  be  in  favor  of  the  rule  that  the  witness 
may  Ik?  compelled  to  answer  when  he  contumaciously  refuse's,  or  when  it 
is  perfectly  cletar  and  plain  that  he  is  mis  aken,  and  that  the  answer  can 
not  possibly  injure  him,  or  tend  in  any  degree  to  subject  him  to  the  peril 
of  prosecution.  But  the  courts  have  recognized  the  impossibility  in  most 
cases  of  anticipating  the  effect  of  the  answer.  Where  it  is  not  so  per- 
fectly evident  and  manifest  that  the  answer  called  for  can  not  incriminate 
aa  to  preclude  all  reasonable  doubt  or  fair  argument,  the  privilege  must 
be  recognized  and  protected.  Janvrin  v.  Scainmon,  29  N.  H.  280;  People 
V.  Forbes,  143  N.  Y.  219. 


T» 


INDEX. 


ABANDONMENT  OF  WIFE. 

1.  Misconduct  OF  wife  exi-i-ained.-Iii  a  prosecution  n-ninst  a  luishnml 

tor  iifKloetiiiK  to  support  liis  wife,  lie  intro.luf-wl  fvi.l.MUH'  of  miscon- 
duct, chju-KinK  lier  with  hrcadics  of  her  luarrinKc  dutv,  and  witii  hav- 
ing' ticclnrt'd  that  whc  would  not  live  with  him .  In  rckittal  his  charges 
were  contradicted,  an.l  two  decrees  put  in  evidence;  tiie  tirst  was  a  de- 
cree of  tlie  prol)ate  court  on  petition  of  the  wife  for  separate  mainte- 
nance, and  tile  otiier  a  decree  dismisHinp;  his  Uliel  for  divorce  on  the 
grounds  of  drunlienness  and  cruelty:  Held,  that  they  were  properly  ad- 
mitted as  tending  to  exi)lain  her  conduct.    Cum.  v.  Ham,  1. 

2.  Intoxication.— Defendant  rwjuested  an  instruction  that  to  justify  liis 

nejrli'ct,  liLs  wife's  hahits  of  intoxication  need  not  he  so  gross  as  to  en- 
title him  to  a  divorce,  and  a  similar  one  as  to  her  alleged  cruel  tre.it- 
meiit.  The  court  charged  that  the  jury  had  a  right  to  consider  such 
facts  as  they  might  find,  but  refused  the  instruction  asked  as  matter 
of  law:  Held,  that  the  charge  was  sufticiently  favorable  to  defendant, 
and  the  question  was  properly  left  to  the  jury.     Id. 

3.  Wife  a  competent  witness.    Note,  p.  3. 

4.  Caue  of  child,  abandoned  wife  entitled  to.    Note,  p.  7. 

5.  Adiltery  of  wife,  after  abandonment,  no  defense  to  prosecution.  Note. 

p.  7. 

0.  Refi'sal  of  husband  to  cohabit  with  wife,  or  to  recognize  her  a.s  such, 

ia  abandonment,  though  they  sleep  under  same  roof.    Note,  p.  7. 

ABDUCTION. 

1.  Indictment.— An  indictment  charging  that  defendant  on  a  certain  day 

"  did,  then  and  there  being,  one  P,,  a  female  under  the  age  of  eighteen 
years.  *  *  *  unlawfully  and  feloniously  take  from  one  P.,  her 
father,  he  *  *  *  then  and  there  having  the  legal  charge "  of  lier 
person,  and  withv^uc  his  consent,  for  the  purpose  of  concubinage,  is 
sufticient  under  statute.    State  v.  Johnson,  7. 

2.  Misconduct  of  grand  jury.— Evidence  by  members  of  the  grand  jury 

indicting  defendant,  that  the  prosecuting  attorney  was  present  during 
their  invesiintation,  and  while  expressing  their  opinions  and  finding  the 
iudictiuent  against  him,  is  inadmissible.    Id. 

3.  Statements  op  the  prosecuting  attorney  as  to  what  occurred  in  the 

grand  jury  room  are  inadmissible.    Id. 

I.  It  is  no  defense  to  such  indictment  that  the  female  taken  for  concubin- 
age was  not  chaste.    Id. 

(763) 


7G1 


AMERICAN  CRIMINAL  REPORTS. 


5.  Inducing  the  female,  by  solicitationa  and  presents,  to  leave  home,  and 

go  with  defendant,  is  a  *'  taking  away"  within  the  statute.     Id. 

6.  Purpose  of  defendant. — Thougli  the  jury  were  instructed  that  if  de- 

fendant's purpose  in  taking  her  away  was  to  cohabit  with  her,  '•  even 
for  a  single  night,"  such  taking  was  for  the  puriK)se  of  concubinage, 
defendant  can  not  complain  of  the  error,  where  it  appears  that  he  had 
lived  with  lier  as  his  wife  for  three  months.    Id, 

7.  It  is  no  defense  that  defendant  had  reason  to  believe  that  such  female 

was  over  eighteen  years  of  age  when  the  offense  was  committed.     Id, 

8.  Rulings  of  the  trial  court  on  the  evidence,  where  its  action  is  not 

questioned  i'ltlni  motion  for  a  new  trial,  can  not  be  reviewed  on  appeal. 
id, 

9.  The  circuit  court  of  the  county  wherein  defendant  began  making 

advances  to  the  female,  and  urging  her  to  go  away  with  him,  has  Juris- 
diction, since  it  is  the  "  taking  away  "  for  the  purpose  of  concul)inago 
tiiat  constitutes  the  offense,  wliether  sexual  intercourse  follows  or  not. 
Id, 

10.  The  fact  that  the  parties  subsequently  had  sexual  intercourse  is  evi- 
dence of  the  intent.     Id, 

11.  An  indictment  under  statute,  providing  that  whoever  shall  unlawfully 
take  or  detain  any  woman  against  her  will,  witii  intent  to  have  carnal 
knowledge  with  her,  shall  be  <;onHned  in  the  penitentiary,  need  not 
charge  that  the  accused  acted  maliciously,  willfully  or  feloniously. 
HigyitiH  v.  Com,,  20. 

12.  Insane  woman. — The  detention  of  an  insane  woman  for  the  purposes  of 
carnal  knowledge  is  "  against  her  will."    Id. 

13.  On  a  prosecution  for  abduction,  evidence  that  the  abducted  female, 
before  her  association  with  the  defendant,  attended  Sunday  Sclujol 
and  church,  was  a  church  member  and  was  received  into  society,  is 
admissible  as  tending  to  fortify  the  presumption  that  her  previous  life 
and  conversation  were  chaste.    Brudshmv  v.  People,  23. 

14.  Testimony  as  to  what  the  girl  said  when  she  went  away  with  de- 
fendant, to  show  that  she  was  not  enticed,  but  went  of  her  own  accord, 
is  not  admissible,  it  being  mere  hearsay.     Id, 


15.  An  instruction  that 
previous  character  of 
rect.    Id. 


"  the  presumption  of  law  is  that  the  life  and 
the  prosecuting  witness  were  chaste"  is  cor- 


16.  It  is  proper  to  refuse  to  instruct  the  jury  that  the  presumption  of 
chastity  "does  not  continue  aft^r  the  production  of  an j* competent  evi- 
dence to  the  contrary,"  since  it  assumes  that  any  competent  evidence, 
however  slight,  and  witiiout  reference  to  its  credibility,  would  over- 
come a  rebuttable  presumption  of  law.    Id. 

17.  The  Illinois  statute  provides  that  whoever  shall  unlawfully  detain 
any  female,  by  force  or  intimidation,  in  any  rtwm,  against  her  will, 
for  purposes  of  prostitution,  or  with  intent  to  cause  such  female  to  be- 
come a  prostitute  and  be  guilty  of  fornication  therein,  is  guilty  of 
felony,  does  not  apply  to  a  man  who  had  carnal  intercoui*se  with  his 
stepdaughter,  against  her  will,  in  his  own  house.  Bunjidd  v.  The 
People,  154  IlL  640.     Note,  p.  22. 

18.  What  constitutes  the  offense,  note,  pp.  17,  28,  Belief  as  to  age  of  female, 
note,  J).  18.  Unchastity,  character  and  habits,  note,  p.  18,  As  to  evi- 
dence in  such  cases  see,  note,  p.  19.  Assault,  detention,  abduction  to 
conceal  marriage,  note,  p.  22. 


INDEX. 
ABORTION. 


7C5 


1.  A  PERSON  WHO  GIVES  A  WOMAN  A  DRUG  with  intont  to  cause  her  to  abort 

may  be  convicted  though  the  abortion  was  in  fact  caused  by  tlie  use 
of  instruments.    State  v.  Morroiv,  28.  ^ 

2.  Sending  drug  into  state  .-The  courts  of  tlie  trial  state  have  jurisdiction 

of  defendant  for  the  offense  of  mlvisiuR  and  pnH^uriuK'  a  woman  of  that 
sate    to  take  a  drug  witli  intent  thereby  of  caushi-  her  to  abor 
though  the  drug  was  procured  by  defendant  in  anotlie?  state,  and  sent 
to  the  woman  by  mail.    Id. 

3.  Accomplice,  who  is  and  who  not  within  the  statute.    Note,  p.  49. 

4.  Dying  declarations.    Note,  p,  49. 

5.  Indictment  need  not  state  means  used.    Note,  p.  49. 

ACCOMPLICE  AND  ACCESSORY. 

Who  IS  and  who  is  not  an  accomplice  within  the  meaning  of  the  statute 
>ote,  p.  49. 

APPEAL. 
See  Error  and  Appeal. 

ARREST. 

1.  Without  avarrant.— Where  a  breach  of  the  peace  is  committed  in  the 

presence  of  a  marshal  of  an  incorporated  village  or  city,  lie  may,  with- 
out warrant,  arrest  the  jiersons  who  participate  therein.  If,  however, 
the  officer  was  absent  when  such  offense  was  committed,  and  did  not 
api)ear  there  until  after  the  affray  had  ended,  public  order  restored, 
and  the  guilty  parties  had  departed  from  the  vicinity,  and  all  the  infor- 
mation the  officer  liad  of  the  affraj,  and  of  the  parties  to  it,  was  the 
statements  of  bystanders  who  witnessed  it.  he  has  no  authority  in  law. 
to  pursue  and  arrest  the  persons  charged  with  the  offense,  without  first 
obtaining  a  legal  warrant  therefor.    State  v.  Lewis,  49. 

2.  Civil  liability  of  officer  making  arrest  through  deputy  who  had 

not  the  wan-ant  in  his  jwssession  —  Question  of  arrest  under  warrant 
discussed.    Note,  pp.  56-o8. 

3.  Arrest  os  suspicion— Identification  from  photograph.  —Officer  held 

to  strict  investigation.     Note,  pp.  58-60. 

4.  Wrongful  arrest.— Warrant  must  truly  name  or  describe  the  person 

sought  to  be  arrested.     Note,  pp.  60-62. 

5.  Persons    irally  deputized  by  the  sheriff  to  assist  him  in  making  an 

arrest  for  felony  are  neither  officers  nor  mere  ])rivate  perscms  while  co- 
operating with  the  sheriff  and  acting  under  his  orders,  but  their  legal 
position  is  that  of  a  posse  comitatus,     Kobinson  v.  State,  570. 

6.  A  person  summoned  by  the  sheriff  to  act  as  one  of  a  posse  to  aid  in 

the  execution  of  a  warrant  fc^r  felony  in  the  sheriff's  liands  is  protected 
in  any  lawful  act  done  by  him  to  promote  or  accomiilish  the  arrest  of 
the  accuseii  person,  to  the  same  extent  as  he  would  were  he  himself  an 
officer  having  personal  custody  of  the  warrant,  and  charged  with  its 
execution.    Id. 

7.  One  other  than  a  known  officer,  who  makes  an  arrest  for  felonj' 

without  having  the  warrant  in  his  own  possession,  ought  to  make  it 
known,  on  demand,  that  the  warrant  exists,  where  it  is,  and  that  he 
claims  to  be  acting  under  its  authority  or  by  command  of  the  officer 


ii 


766 


AMERICAN  CRIMINAL  REPORTS. 


who  has  it  in  his  ptossession;  but  the  omission  to  do  so  will  not  justify 
the  party  arrested  in  resisting,  if  he  in  fact  already  knows,  or  believes 
that  he  is  under  a  charge  of  felony,  or  that  a  warrant  is  out  for  his  arrest! 
If,  however,  the  demand  for  authority  be  made  under  real  ignorance 
of  these  things,  and  in  good  faith,  for  the  purpose  of  eliciting  informa- 
tion, failure  to  comply  with  the  demand  would  justify  resistance  to  any 
reasonable  and  proper  extent.    Id. 

8.  Instructions.— The  court  in  its  charge  having  made  the  case  turn 
chiefly  on  the  right  and  power  of  the  deceased  to  make  the  arrest,  irre- 
spective of  the  manner  in  which  the  power  was  executed,  and  of  the 
failure  of  the  deceased  to  respond  fully  to  the  demand  made  upon  liim 
for  his  authority,  and  without  reference  to  the  good  or  bad  faith  with 
which  that  demand  was  made,  the  charge  was  erroneous,  and  the  ac- 
cused is  entitled  to  a  new  trial.    Id. 

ARSON. 

1.  Threats— Footprints. — Evidence  that  a  certain  barn  was  burned  dur- 

ing the  night;  that  defendant  was  angry  with  the  owner  of  the  barn, 
and  had  on  the  previous  day  threatened  to  burn  it;  that  fresh  footprints 
leading  from  the  road  to  the  barn,  and  matching  tlefendaut's  feet,  were 
found  on  the  morning  after  the  fire;  and  that  defendant  had  passed  by 
the  place  during  the  night  and  had  stopped  at  a  house  on  the  way  to 
get  some  matches— is  sufficient  to  warrant  a  conviction.  Carlton  v 
People,  62. 

2.  Same. — Evidence  that  another  person  had  also  threatened  to  burn  said 

bam  is  inadmissible  as  being  irrelevant,  and  also  as  being  mere  hearsay. 
Id. 

3.  Same.— Evidence  that  the  house  burned  was  on  defendant's  land,  which 

he  was  unable  to  sell  owing  to  occupant's  refusal  to  leave;  that  defend- 
ant had  threatened  to  burn  the  house,  and  was  seen  leaving  it  \>itli  an 
empty  oil  can  a  few  minutes  before  the  fir^  was  discovered,  was  suffi- 
cient to  sustain  a  conviction.    People  v.  Biirridge,  70. 

4.  Though  a  sentence  op  nine  months'  imprisonment  for  arson  is  irregular, 

the  statute  providing  that  the  offense  shall  Ite  punishable  by  imprison- 
ment for  "any  term  of  years,"  such  irregularity,  being  in  defendant's 
favor,  can  not  be  taken  advantage  of  by  him.    Id. 

5.  Instructions   as   to  reasonable  doubt  and    circumstantial   evidence. 

Carlton  v.  People,  62. 

6.  Burning  vacant  house.    Note,  p.  70. 

7.  Indictment.— Occupancy  of  house— Ownership.    Note,  p.  70. 

8.  What  constitutes  arson.    Note,  p.  70. 


ASSAULT  WITH  INTENT   TO  KILL. 

No  right  to  abate  nuisance  by  force.— a.  maintained  a  gate  across  a 
highway  leading  to  a  beach  where  defendant  W.  had  a  seaweed  privi- 
lege, and  tried  to  prevent  defendants,  who  came  there  with  the  inten- 
tion of  forcing  the  gate  in  case  of  resistance,  from  going  through  on 
their  way  to  the  beach,  whereupon  defendants  forced  the  gate,  causing 
a  fight  resulting  in  the  injuries  to  A.,  for  assaulting  whom  defendants 
were  indicted.  Held,  that  although  A.  was  maintaining  a  public  nui- 
sance, which  was  a  source  of  special  injury  to  W.,  defendants  were  not 
justified  in  using  violence  to  overcome  his  resistance.  State  v.  White. 
73. 

Same.— Where  defendants  brought  on  the  difficulty  themselves  they 
caw  not  plead  self-defense.    Id. 


"11' 


n 


INDEX. 


767 


1 


8.  ApmNISTERINO  POISON  AN  ASSAULT. -The  Unlawful  infliction  of  nn  in 
jury  by  administering  poison  constitutes  an  assault     "J.ut"  %a^,  ^. 

4.  General  REPUTATION.-On  a  trial  for  murder  by  the  administration  of 
CTsalSsS.^  defendant's  general  reputafion  for  pe^^^uit' 

'•  'ingX,=l*  1£:^!)^J^^  ''-''''  ^  ^-^'^  --P-  -ithin  strik- 

6.  Merely  being  in  possession  of  premises  win  ..ot  justify  the  use  of  vie- 

lence  to  prevent  entry  of  lawful  occupant.    Note,  p.  80. 

7.  That  plaintiff  was  trespasser  can  not  be  pleaded  in  defense  of  action  for 

clSScilllt'.      .W  OtOj  p.  oU. 

8.  INDICTMENT.-Sufficiency  of  for  assault  with  intent  by  use  of  poison. 

plote,  p.  oJ, 

ASSAULT  WITH  INTENT  TO  RAPE. 

1 .  Boy  under  fourteen  YEARS.-Presumptively,  a  boy  under  the  age  of  four- 
teen years  is  physically  incapable  of  committing  the  crime  of  rai)e  and 
hence  it  is  incumbent  upon  the  state  to  prove  his  capacity,  in  order  to 
warrant  a  conviction  for  the  offense  of  assault  with  intent  to  commit  a 
rape.     Gordon  v.  State,  444. 

3.  Mental  capacity.— Upon  the  trial  of  a  boy  between  the  ages  of  ten  and 
fourteen  years  for  any  offense  it  is  not  error  to  give  in  charge  to  the 
jury  a  provision  of  the  code  which  relates  alone  to  mental  eapacT*^-      Id. 

3.  Discussion  of  question  and  of  evidence  to  convict.    Note,  p.  448. 

4.  Husband  ouilty  who  constrains  another  through  fear  to  attempt  to  rav- 

ish his  wife.    Note,  p.  448. 

6.  Assault  with  intent  to  rape  female  under  age  of  consent.    Note  p.  449. 

ATTEMPT  TO  EXTORT. 

1.  Evidence  of  motive.— Where  defendant  threatened  to  accuse  another 

of  crime  with  intent  to  himself  commit  that  of  extortion,  and  suc- 
ceeded in  obtaining  money  from  that  other,  the  fact  that  such  person 
was  endeavoring  to  induce  defendant  to  receive  money,  for  the  pur- 

Eose  of  accusing  him  of  extortion,  and  so  could  not  have  been  moved 
y  fear,  will  not  prevent  his  conviction  for  an  attempt  at  extortion. 
I'eople  V.  Gardner,  83. 

2.  Same.— On  the  trial  of  one  indicted  for  attempted  extortion,  in  threat- 

ening to  accuse  another  of  keeping  a  house  of  ill  fame,  where  it  was  in 
evidence  that  he  was  in  intimate  association  with  tliat  other,  it  was 
error  to  exclude  testimony  in  behalf  of  defendant  that  his  courye  was 
one  in  obedience  to  the  instructions  of  a  society  for  the  prevention  of 
crime,  whose  agent  he  was.    Id. 

8.  Attempt  to  commit  impossible  crime.— A  person  may  be  convicted 
of  an  attempt  to  commit  the  crime  of  larceny  by  thrusting  his  liand 
into  the  pocket  of  a  person  though  the  pocket  be  empty.  People  v. 
Gardner,  82. 

4.  Same.— A  peraon  may  be  convicted  of  an  attempt  to  commit  an  abortion 
though  the  woman  was  not  pregnant;  and  there  may  be  conviction  of 
an  attempt  to  obtain  property  by  false  pretenses  tliough  the  person 
knew  the  pretenses  were  false.  la. 


n  i 


>  .• 


763 


AMERICAN  CRIMINAL  REPORTS. 


5.  Attempt  to  commit  crime. - 
Butler,  661. 


-Soliciting  commission  of  crime.    State  v. 


BAIL. 


1.  Bail  after  conviction. — The  supreme  court  can  not,  by  rule,  add  to 

its  powers,  but,  having  the  power  to  admit  to  bail  in  criminal  cases 
pending  proceedings  in  error,  it  may,  by  rule,  regulate  the  manner  of 
taking  bail.     Hudson  v.  Parker,  91. 

2.  Same. — Any  justice  of  the  supreme  court,  having  power,  by  the  acts  of 
congress,  to  allow  a  writ  of  error,  issue  the  citation,  take  the  security 
required  by  law,  and  grant  a  supersedeas,  has  the  authority,  as  incident 
thereto,  to  order  plaintiff  in  error  to  be  admitted  to  bail,  independently 
of  any  rule  of  court.  Mr.  Justice  Brewer  and  Mr.  Justice  Brown,  dis- 
senting.    Id, 

8.  Same. — An  order  by  a  justice  of  the  supreme  court  as  follows:  "  Writ 
of  error,  to  operate  as  a  supersedeas,  allowed,  returnable  according  to 
law,  the  defendant  to  furnish  bond  in  the  sum  of  $5,000,  conditioned 
according  to  law,  subject  to  the  ajjproval  of  the  district  judge" — is  not 
a  mere  sujiersedeas,  with  reference  of  the  matter  of  bail  to  the  trial 
judge,  but  is  a  command  with  respect  to  bail.  Mr.  Justice  Brewer  and 
Mr.  Justice  Brown,  dissenting.     Id. 

4.  Same. — Though  the  discretion  of  a  judge  in  a  matter  intrusted  to  his  ju- 

dicial discretion  can  not  be  controlled  by  mandamus,  yet  if  lie  declines 
to  exercise  his  discretion  or  to  act  at  all,  mandamus  will  lie  to  compel 
him  to  act.     Id. 

5.  Bail  after  indictment. — Under  laws  of   Wyoming,    providing   that 

when  an  imjK)rtant  or  difficult  (piestion  arises  in  an  action  pending  in 
the  district  court  the  judge  may  cause  the  same  to  be  reserved,  and 
sent  to  tlie  supreme  court  for  its  deciwion,  and  Const,  art.  5,  ^  2, 
giving  the  supreme  court  a  general  superintending  control  over  all 
inferior  courts,  the  supreme  court  has  jurisdiction  of  <piestions  certi- 
fied from  the  district  court  as  to  whether  a  person  indicted  for  murder 
should  be  admitted  to  bail.    State  v.  Crocker,  468. 

6.  Same.— Laws  1890,  c.  23,  §  1,  providing  that  no  person  under  indictment 

for  a  capital  offense  shall  be  admitted  to  bail,  is  in  conflict  with  Const., 
art.  1,  >;  14,  providing  that  "all  persons  shall  be  bailable  by  sulH;;ient 
sureties,  except  for  capital  offenses  when  the  proor  is  evident  or  tlie 
presumption  great."    Id. 

7.  Same— Under  Const. ,  art.  1,814,  providing  that  "  all  persons  shall  be  bail- 

able by  sufficient  sureties,  except  ior  capital  offenses  when  the  proof  is 
evident  or  the  presumption  great,"  one  mdicted  for  murder  in  the  first 
degree  is  entitled  as  of  right  to  a  hearing  on  an  application  for  admis- 
sion to  bail.    Id, 

8.  Same.— On  the  hearing  of  the  application  for  admission  to  bail  by  one 

under  indictment  for  murder  in  the  first  degree  to  determine  whether 
or  not  the  proof  is  evident  or  the  presumption  great,  the  burden  of 
proof  is  on  defendant.     Id. 

9.  Same.— In  such  a  case  both  parties  are  entitled  to  compulsory  process  to 

secure  the  attendance  of  witnesses.     Id. 

10.  Right  to  bail  discussed.    Note  p.  485. 

11.  Forfeiture  of  bail  and  validity  of  recognizance,    Note  p.  486. 

BANKS  AND  BANKERS. 

1.  Waiver  of  preliminary  examination.— Where  the  complaint  and 
warrant  in  a  criminal  case  state  in  general  language  the  offense  charged 


INDEX. 


7G9 


against  the  defendant,  and  such  defendant  waives  a  preliminary  exam- 
ination thereon,  he  can  not  be  heard,  after  an  information  lias  l)een 
filed,  setting  forth  fully  and  specitically  tlie  offense  attempted  to  lie 
charged  in  the  warrant,  to  say  that  he  has  had  no  i)reliminary  exami- 
nation.   State  V.  Myers,  108. 

2.  Information.— An  information,  under  the   provisions  of   the   statute. 

charging  an  officer  of  a  bank  with  knowingly  accepting  deposits 
when  his  bank  is  insolvent,  need  not  allege  that  loss  occurred  to  any 
one  by  reason  of  such  deposit.    Id. 

3.  Opinion  evidence.— It  is  error  to  permit  a  witness  upon  the  trial  to  give 

his  opinion  as  to  the  solvency  or  insolvency  of  the  bank  at  the  time  of 
the  alleged  deposit.  The  actual  facts  concerning  the  conclition  of  the 
bank  at  the  time  of  the  deposit  may  be  proved,  but  opinion  evidence 
thereof  is  not  admissible.    Id. 

4.  Use  of  deposits. — The  law  of  the  state  does  not  require  a  bank  receiving 

deposits  and  transacting  a  banking  business  to  retain  on  hand  all  of  the 
money  of  its  deiiositors.  The  bank  is  not  generally  expected  to  bc^  alile 
to  pay  every  dei)ositor  at  once,  but,  if  solvent,  it  must  be  able  to  pay 
or  provide  for  its  ileposits  and  other  debts  as  they  are  demanded  in  the 
usual  course  of  business.    Id. 

5.  Capital  stock. — In  prosecution  against  an  officer  of  a  bank  for  know- 

ingly receiving  deiK)sits  when  his  bank  is  insolvent,  the  (lapital  stock 
and  8uri)lus  fund  are  not  to  be  considered  as  liabilities  tending  to  show 
such  insolvency.  The  capital  and  surplus  of  a  bank  are  its  resources, 
which  may  be  used  to  pay  its  depositors  and  other  creditors  when 
tiiere  has  been  loss,  by  loans  or  otherwise.    Id. 

6.  Officer  OF  BANK — Presumption  of  knowledge. — A  person  holding  the 

office  of  director  and  vice-president  of  the  bank  is  not  conclusively 
presunied  to  know  everything  of  importance  that  occui-s  in  the  bank, 
including  its  condition,  in  the  absence  of  actual  notici>  of  knowledge 
thereof.     Id, 

7  Misappropriation  of  national  bank  notes.— Requisite  of  indictment. 
Evans  v.  U.  S..  668. 

8.  Not  class  legislation.— Act  punishing  a  person  receiving  deposits  in 
a  bank  with  knowledge  of  its  insolvency  not  class  legislation.  Robert- 
son V.  People,  284. 

9  Evidence  of  knowledge.— Legislature  has  power  to  declare  that  the 
failure  of  any  bank  within  thirty  days  from  the  time  a  deposit  was 
made  shall  be  prima  facie  evidence  of  knowledge  of  insolvency  of  the 
bank  on  the  part  of  the  banker.    Id. 


i    :: 


1 


BASTARDY. 

1  Ventte  —A  prosecution  for  bastardy  may  be  had  in  the  county  of  the 
"     complainant's  actual  residence,  and  in  which  the  child  in  question  is 

liable  to  become  a  public  charge,  although  comj)lainant  have  a  legal 
settlement  in  another  county  or  state.  Clark  v.  State  e.v  ret.  Cary,  117. 

2  Nature  of  order.— In  a  prosecution  for  bastardy,  to  order  the  accused, 
■     on  conviction,  to  pav  to  the  complainant  a  specific  amount  of  money 

for  the  8upix)rt  and  education  of  the  illegitnnate  child  is  not  error.  Id. 


8. 


TMscretion  of  court.— Some  discretion  is  allowed  the  trial  court  in  flx- 
inK  the  amount  in  which  the  accused,  upon  conviction  for  bastardy, 
liinll  «tnnd  charired:  and  a  judgment  in  such  case  will  not.  on  appeal, 
Slid  to  be  icSe,  in  the  absence  of  a  manifest  abuse  of  discretion. 

Id. 

49 


770 


AMERICAN  CRIMINAL  REPORTS. 


4.  Nature  of  the  proceeding.    Note,  p.  121. 

5.  Jurisdiction,  lying-in  expenses.    Note,  p.  121. 

6.  Intercourse  with  others  than  defendant.    Note,  p.  121. 

7.  Uncorroborated  evidence  of  prosecutrix  is  sufficient.    Note,  p.  121. 

8.  Release  by  infant  complainant  not  binding  on  state.    Note,  p.  121. 

BIGAMY. 

1    Tti"  i^jr^Ojjj^L  LAW.— Section  74  of  chapter  73,  approved  March  14,  1890, 
)•  valid  law  of  the  territory  of  Wyoming  when  enacted,  and,  by 
rt..i  "^f  the  enabling  act  and  the  constitution  of  the  state,  became, 
(:'.  ^  s  .il  is,  the  law  of  the  state;  and  under  the  provision  of  said  section 
wnich  defines  and  punishes  the  crime  of  bigamy,  the  offense  is  punish- 
able under  the  laws  of  said  state.    In  re  Murphy,  122. 

2.  Samt  — Lav.'  ..  congress.— Tlie  fact  that  the  congress  of  the  United 
Stjiti  /,  had  c.iai^ted  a  law  defining  and  punishing  the  crime  of  bigamy 
in  tlie  terriMi  "ts  .i  )J  other  places  over  which  the  United  States  have 
exclusive  jurisdiction,  did  not  restrict  or  impair  the  right  of  the  legis- 
lature of  the  territory  of  Wyoming  to  define  and  provide  a  punish- 
ment for  bigamy,  as  an  offense  against  the  territorial  sovereignty  and 
its  laws.    J(i. 

8.  Crime  against  two  governments.— The  rjontention  that  the  law  of  the 
territorv  was  not  valid,  because  the  same  act  was  punishable  as  a  crime 
under  the  laws  of  the  United  States,  and,  therefore,  if  both  were  in 
force,  the  person  committing  the  crime  would  be  subject  to  punish- 
ment twice  for  the  same  offense,  is  not  sound,  as  the  federal  govern- 
ment could  punish  it  as  a  crime  against  it,  while  at  the  same  time  it 
might  be  a  crime  punishable  under  the  laws  of  the  territory.    Id. 

4.  Same. — The  act  of  congress  defining  ai.d  punishing  bigamy  in  the  terri- 

tories constituted  the  act  a  crime  against  the  United  States,  and  not  an 
offense  against  the  territory  or  its  laws,  and  did  not  so  cover  the  entire 
subject  of  legislation  for  the  territories  as  to  supersede  the  territorial 
law  upon  the  same  subject.    Id. 

5.  Age  of  consent. — Under  a  statute  declaring  that  the  marriage  of  one 

below  the  age  of  consent  can  only  be  annulled  by  that  party,  and  that, 
if  he  or  she  freely  cohabit  with  the  other  after  attaining  the  age  of  con- 
sent, the  marriage  is  valid,  one  who  has  married  a  girl  below  the  age  of 
consent,  can  not,  after  re-marrying,  plead  that  fact  to  the  charge  of 
bigamy.    People  v.  Beevers,  139. 

6.  A  MARRIAGE  BY  CONSENT,  followed  by  "a  mutual  assumption  of  mari- 

tal rights,  duties  or  obligations,"  as  described  in  Civil  Code,  g  Ho,  is  as 
sufficient  a  basis  for  a  prosecution  for  bigamy,  as  one  by  consent  "  fol- 
lowed by  u  solenmization."    Id. 

7.  Decree  appealed  from  inadmissible. — In  a  prosecution  for  bigamy, 

on  a  defense  that  the  first  maniage  was  illegal,  the  judgment  roll  of  a 
suit  for  divorce  by  the  flret  wife  against  the  accused,  granted  by  the 
court,  and  pending  on  appeal  in  the  supreme  court,  is  incompetent 
evidence,  and,  if  admitted,  prejudicial.    Id. 

8.  Prior  marriage  is  an  essential  part  of  the  corpus  delicti.    Note,  p.  144. 

9.  Minor  marrying  without  consent  of  his  parents.    Note,  p.  144. 

BILL  OF  EXCEPTIONS. 

1.  Affidavit— How  included  in.— An  affidavit  which  it  was  claimed  was 
used  in  the  bearing  of  a  motion  for  a  new  trial,  but  the  record  does  not 


INDEX. 


:7i 


disclose  whether  it  was  used  or  presented  at  the  hearing  of  the  motion. 
can  not  be  considered  for  any  purpose  in  this  court  unless  presented  by 
bill  of  exceptions,  and  thus  made  a  part  of  tliu  record  in  the  ca.se.  Bcin- 
eker  v.  State,  460. 

2.  Identification  f)F.— Where  a  record  is  filed  in  this  court,  consisting  of  two 

volumes,  marked  "  1 "  and  "  3."  nurporting  to  c(mtain  the  bill  of  excep- 
tions in  the  case,  certified  to  and  autlienticated  by  the  trial  .judge,  who 
states  that  the  bill  of  exceptions  is  contained  "  in  two  volumes,  muii- 
bered  '  1'  and  -S,'"  in  the  absence  of  any  proof  to  the  contrary,  such 
volumes  will  be  considered  ns  containing  the  bill  of  exceptions  so  re- 
ferred to.     State  V.  Myers,  108. 

3.  OVERBULINQDEMUURER.— Time  of  excepting— practice.     Note,  p.  158. 

BREACH  OF  THE  PEACE. 

Any  violation  of  the  public  order  or  decorum  is  a  broach  of  the  peace. 
State  V.  White,  73. 

BURGLARY. 

1.  Room  in  a  hotel.— One  who  has  no  other  place  of  abode  than  a  room  in 

a  hotel,  for  which  he  pays  r^nt  by  the  weelf,  and  in  which  he  Iceeps  liis 
personal  effects,  is  not  a  gi' 'st  of  the  hotel,  but  has  an  interest  in  the 
room,  and  ownei"ship  is  properly  averred  in  him  in  an  in<lictment  for 
burglary  of  the  room.  The  indictment  in  such  case  sliould  allege  that 
it  is  tlie  dwelling  house  of  the  roomer.    State  v.  Johnson,  145. 

2.  Ownership  of  property  entered.    Note,  pp.  147,  148. 

3.  Possession  of  property  recently  stolen -explanation  as  to.    Note,  p.  14S. 

4.  Intent  is  essential  element  of  the  ofTense.    Note,  p.  148. 

.'».  Entering  house  at  two  different  times  same  night— election  of  counts. 
Note,  p.  343. 

CARRYING  CONCEALED  WEAPONS. 

Unlawful  search. — On  trial  for  carrying  concealed  weapons,  where  it 
appeared  that  a  pistol  was  found  concealed  on  defendant's  person  after 
a  forcible  search  by  an  officer,  although  such  search  was  unlawful,  the 
evidence  so  obtained  is  admissible  against  tlie  defendant.  Shiehbt  ii. 
State,  149. 

Same.— The  admission  of  evidence  so  obtained  does  not  conflict  with  the 

constitutional  guaranty  that  no  one  shall  be  compelled  to  give  evidence 

against  himself.    Id. 
Prison  rules.— A  requirement  by  a  sheriff,  as  .iailer,  that  all  persons 

must  be  searched  before  being  allowed  to  visit  prisoners,  is  reasonable, 

but  on  refusal  to  comply  the  sheriff  can  not  search  a  person  against 

his  will.     Id. 
Justification.— A  person  threatened  is  justified  in  carrying  concealed 

weairons,  says  the  Mississippi  court,  but  I  do  not  believe  that  is  good  law ; 

such  a  rule  would  be  a  menace  to  good  order.    See  cases  digested  m 

note,  pp.  156-157. 
A  razor  is  a  deadly  weapon.    Note,  p.  1(56. 


1. 


5. 


CHANGE  OF  VENUE. 


When  petition  fob  change  of  venue  and  affidavits  required  by  law 
are  filed,  the  court  has  no  discretion,  and  the  change  of  venue 
should  be  granted.    Higgim  v.  Com.,  20. 


( 

\  \ 


772 


AMERICAN  CRIMINAL  REPORTS. 


CERTIORARI. 

Public  trial.— Where  a  person  accused  of  crime  ia  denied  a  public  trial, 
cfvtiortiri  will  lie  to  review  the  action  of  the  trial  court.  Peojjle  v. 
Miitruy,  719. 

CHEATING  AND  SWINDLING. 

See  False  Pretenses,  also  SwiNui-tNo. 

COMMON  LAW. 

How  RECOGNIZED  BY  THE  COURTS. — There  are  no  common  law  offenses  against 
the  United  otates.     Com.  v.  Lehigh  Valley  Ry.  Co.,  870.     Note,  p.  370. 

CONFESSIONS. 

1.  Must  BE  FREE  AND  VOLUNTARY. — In  Order  that  evidence  of  a  confmsion 

by  a  prisoner  may  be  admissible,  it  must  be  aftirmatively  proved  that 
sucIj  confession  was  free  and  voluntary,  that  is.  wjw  not  preceded  by 
any  inducement  to  the  prisoner  to  make  a  statement  held  out  by  a  per- 
son in  authority,  or  that  it  was  not  made  until  after  such  inducement 
had  clearly  been  removed.     The  Queen  v.  Thompson,  269. 

2.  S>ME. — The  prisoner  was  tried  for  embezzling  the  money  of  a  comi)any. 

It  was  proved  at  the  trial  that,  on  being  taxed  with  the  crime  by  the 
cliairnum  of  the  company,  he  said,  '•  Yes,  I  took  the  money,"  and  after- 
ward made  out  a  list  of  the  sums  which  he  had  embezzled,  and  with 
the  assistance  of  his  brother  paid  to  the  company  a  part  of  such  sums. 
The  chairman  stated  that  at  the  time  of  the  confession  no  threat  was 
used  and  no  promise  made  as  regards  the  prosecution  of  the  prisoner, 
but  admitted  that,  before  receiving  it.  he  had  said  to  the  prisoner's 
brother,  "  It  will  be  the  right  thing  for  your  brother  to  make  a  state- 
ment," and  the  court  drew  the  inference  that  the  prisoner,  when  he 
made  the  confession,  knew  that  the  chairman  had  spoken  these  words 
to  his  brother.  Held,  that  the  confession  of  the  prisoner  had  not  been 
satisfactorily  proved  to  have  been  free  and  voluntary,  and  that,  there- 
fore, evidence  of  the  confession  ought  not  to  have  been  received.     Id. 

3.  Corpus  delicti  proved  before  confession,  admissible.— Court  must 

decide  in  flrat  instance  whether  of  the  corpun  delicti  is  sufficient  to  per- 
mit confessions  of  accused  to  go  to  the  jury.  Lambright  v.  State, 
883. 

CONSPIRACY. 

1.  Description  of  land. — In  charging  a  conspiracy  to  defraud  the  United 

States  of  large  tracts  of  land  by  means  of  false  and  Hctitious  entries 
under  the  homestead  laws,  it  is  not  necessary  to  specify  the  tracts  by 
number  of  section,  township  and  range.     Dealy  v.  U.  S.,  161. 

2.  Homestead  lawt — Requisite  of  entry.— An  entry  of  lands  under  the 

homestead  law,  in  jwpular  underatanding,  means  not  only  the  prelimi- 
nary application,  but  the  proceedings  as  a  whole  to  complete  the  transfer 
of  title,  and  in  charging  a  conspiracy  to  obtain  public  lands  by  false 
entries,  the  word  nuiy  be  used  in  that  sense  in  the  mdictnient.     lb. 

3.  Overt  act. — A  charge  that  an  overt  act  was  done  according  to  and  in 

pursuance  of  a  conspiracy  which  had  been  previously  recited,  is  etjuiva- 
tent  to  charging  that  it  was  done  to  effect  the  object  of  the  conspiracy. 
If  an  illegal  conspiracy  be  efttered  into  within  the  limits  of  the  United 
States  and  within  the  jurisdiction  of  the  court,  the  crime  is  complete, 
and  the  subseijuent  overt  act  in  pursuance  thereof  may  be  done  any- 
where,   lb. 

4.  Labor  organizations.- If  an  employe  of  a  railroad  company  quits  with- 

out cause,  and  in  violation  of  an  express  contract  to  serve  for  a  stated 
time,  then  his  quitting  would  not  be  of  right,  and  h.  -.'.  ould  be  liable 


INDEX. 


«  << 


for  any  flnmagps  resulting  from  a  broach  of  his  agreonient  an.l  n..r 
haim  in  Home  states  of  c;ase,  to  criminal  prosecution  f.)r  loss  o^   lite  ,; 
hmb  by  passengers  or  others,  dire<.tly  resulting  from  his  a  an.?,  n'    Is 
post  at  a  time  wlien  care  an.l  watchfulness  ^^^,H  iv,iuiri;    "S      sp    t 

5.  No  MAN  COMPELLED  TO  SEUVE  ANOTHER,-It  wouW  be  an  invasion  of  one's 

natural  liberty  to  compel  him  to  work  for,  or  to  re.nuin  in  tlu  ,"  s  "  al 
service  of  another.  One  who  is  place.1  under  such  restraint  is  in  a  •  ' 
ditwn  of  involuntary  servitude-a  con.liti.m  which  the  supreme  law  ,  f 
the  land  declares  shal  not  ex  st  within  the  United  States,  or  in  ,„y 
place  subiect  to  their  jurisdiction.    lb.  ^ 

6.  Reciprocal  uights  of  employer  and  EMPLOVE.-The  rule  we  think  is 

without  excention  that  equity  will  not  compel  the  actual,  alHrinative 
performance  by  an  employe  of  merely  personal  services,  anv  more  than 
It  will  comi)el  an  employer  to  retain  in  his  personal  service  one  who 
no  matter  for  what  cause,  is  not  acceptable  to  him  for  service  of  tiiit 
character.  The  right  of  an  employe,  engaged  to  perform  pers.mal  serv- 
ice, to  quit  tliat  service,  rests  upon  the  same  basis  as  the  right  of  his 
employer  to  discharge  him  from  further  pers<jnal  service,     lb. 

7.  Same-Ordinarily,  equity  can  not  interfere. -If  the  quitting  in  the 

one  ca.se,  or  the  discharging  in  the  other,  is  in  violation  of  the  contract 
between  the  parties,  the  one  injured  by  the  breach  bus  his  action  for 
damages;  and  a  court  of  wjuity  will  not,  indirectly  or  negatively 
by  means  of  an  injunction  restraining  the  violation  of  the  contract' 
compel  the  affirmative  perft)rmance  from  day  to  day,  or  the  affirmative 
acceptance,  of  merely  personal  services.  Relief  of  that  character  has 
always  been  regarded  as  impracticable.    lb. 

8.  Same— Remedy  lies  in  legislation.  —Undoubtedly  .the  simultaneous  ces- 

sation of  work  by  any  considerable  number  of  the  employes  of  a  railroad 
coriwration  without  previous  n.rtice  will  have  an  injurious  effect,  and 
for  a  time  inconvenience  the  public.  But  these  evils",  great  as  they  are, 
and  although  arising  in  many  cases  from  the  inconsiderate  conduct  of 
employes  and  employers,  both  equally  indifferent  to  the  general  welfare, 
are  to  be  met  and  remedied  by  legislation  restraining  alike  employes  and 
employers,  so  far  as  necessary  adequately  to  guard  the  rights  of  the 
public  as  involved  in  the  existence,  maintenance,  and  safe  management 
of  public  highways.     lb. 

9.  Equity  will  not  compel  personal  service. —The  fact  that  employes  of 

railroads  may  quit  under  circumstances  that  would  show  bad  f  aitli  ufwn 
their  part,  or  a  reckless  disregard  of  their  contract  or  of  the  conven- 
ience and  interests  of  both  employers  and  the  i)ublic,  does  not  justify 
a  departure  from  the  general  rule  tiiat  equity  will  not  compel  tlie  act- 
ual, affirmative  performance  of  merely  personal  services,  or  (which  is 
the  same  thing)  require  employes,  against  their  will,  to  remain  in  the 
personal  service  of  their  employer.    lb. 

10.  Property  in  possession  of  receivers.— Th(^se  employes  having  taken 
service  first  with  the  company,  and  afterward  with  the  receivers,  under 
a  general  contract  of  employment  which  did  not  limit  the  exercise  of 
the  right  to  quit  the  service,  their  peaceable  co-operation,  as  the  result 
of  friendly  argument,  persuasion,  or  conference  among  themselves,  in 
asserting  the  right  of  each  and  all  to  refuse  further  service  under  a 
schedule  of  reduced  wages,  would  not  have  been  illegal  or  criniiiiiil, 
altiiough  they  may  have  so  acted  in  the  firm  belief  and  expectation 
tiiat  a  simultaneous  quitting  without  notice  would  tenqiorarily  incon- 
venience the  receivers  and  the  public.  If  in  good  faith,  and  peaceably, 
they  exercise  their  right  of  quitting  the  service,  intending  thereby  only 
to  better  their  condition  by  securing  such  wages  as  they  deem  just. 


K    'i 


% 


T74 


AMERICAN  CRLMINAL  REPOKTS. 


but  not  to  injure  or  int(M'fere  with  tlio  free  action  of  otlici-s,  they  can 
not  l)e  legally  charKed  witli  any  Iohh  to  the  trust  property  resulting  from 
their  cessation  of  wt)rk  in  consetiuence  of  the  refusal  of  the  receivers 
to  accede  to  the  terms  upon  whicli  they  were  willing  to  remain  in  the 
service.     lb, 

11.  Eqi-ity  may  interferk  to  prevent  irreparable  iNJrRY.— Acroni- 
ing  to  the  principles  of  the  common  law,  a  conspiracy  uj)on  the  part  of 
two  or  nutre  jiersons,  with  the  intent,  by  their  combmeil  power,  to 
wrong  othei-s  or  to  prejudice  the  rights  of  the  public,  is  in  itself  illegal, 
although  nothing  be  actually  done  in  execution  of  such  conspiracy. 
This  is  fundamental  in  our  jurisprudence.  So,  a  combination  or  con- 
spiracy to  procure  an  employe  or  lx)dy  of  employes  to  quit  service  in 
violation  of  the  contra(;t  of  service,  would  be  unlawful,  and  in  a  proper 
case  might  be  enjoined,  if  the  injury  threatened  would  be  irremediable 
at  law.    lb. 

12.  Same— Intent  to  injure— Combination.— An  intent,  upon  the  part  of 
a  single  person,  to  injure  the  rights  of  others  or  of  the  public,  is  not  in 
itself  a  wrong  of  which  the  law  will  take  cognizance,  unless  some 
injurious  act  be  done  in  execution  of  the  unlawful  intent;  but  a  combi- 
nation of  two  or  more  persons  with  such  an  intent,  and  under  circum- 
stances that  give  them,  when  so  combined,  a  power  to  do  an  injury 
they  would  not  possess  as  individuals  acting  singly,  has  always  been 
recognized  as  in  itself  wrongful  and  illegal. 

13.  Same. — It  seems  entirely  clear,  ui)on  authority,  that  any  combination 
or  conspiracy  ujwn  the  part  of  these  employes  would  be  illegal  whicli 
has  for  its  object  to  cripple  the  property  m  the  hands  of  the  receivers, 
and  to  embarrass  the  ojjcration  of  the  railroads  under  their  manage- 
ment, either  by  disabling  or  rendering  unfit  for  use,  engines,  cars  or 
otlier  property  in  their  hands,  or  by  interfering  with  their  possessioi 
or  by  actually  obstructing  their  control  and  management  of  the  prop 
erty,  or  by  using  force,  intimidation,  threats  or  otlier  wrongful  nietli- 
ods  against  the  receivers  or  their  agents,  or  against  employes  remaining 
in  their  service,  or  by  using  like  methods  to  cause  employes  to  quit,  or 
prevent  or  deter  others  from  entering  the  service  in  place  of  tliose  leav- 
ing it.     lb. 

14.  The  act  op  conokess  of  June  29, 1886,  legalizing  the  incoriwration  of 
national  trail*'  unions  (34  Stat.  80,  c.  567,)  does  not  sanction  illegal  com- 
binations.   Id. 

15.  In  the  absence  of  evidence,  it  can  not  lie  held,  as  a  matter  of  law, 
that  a  combination  among  emploj'es  having  for  its  object  their  orderly 
withdrawal  in  large  numbers,  or  in  a  body,  from  the  service  of  their 
employers,  on  account  simply  of  a  reduction  of  their  wages,  is  not  a 
"strike,"  within  the  meaning  of  that  word  as  commonly  used.  Sucli  a 
withdrawal,  although  amounting  to  a  strike,  is  not  illegt^!  or  criminal. 
Circumstances  stateil  under  which  a  court  of  equity  may  interfere  to 
prevent  strikes  or  illegal  interference  with  property.     Id. 

16.  Conspiracy  to  rob.— An  indictment  charging  that  defendants  "  con- 

sjtiied  together  to  unlawfully  take  one  thousand  dollars  in  money,  the 
property  of  J.  H.,  from  his  person,  and  against  his  will,  by  violence  to 
to  his  person,  or  by  putting  him  in  such  fear  as  unwillingly  to  part 
with  the  same,"  is  analogous  to  Cr.  Code,  p.  276,  form  76.  and  page  2Ci>, 
form  29,  Alabama,  prescribing  forms  for  indictment  for  robbery  and 
consi)iracy,  and  therefore  complies  with  Id.,  §  4899,  providing  that 
analogous  forms  may  be  used.     Thomptton  et  al.  v.  State,  199. 

17.  Same. — Conspiracy  to  rob  is  in  itself  an  offense,  and  the  conspirators 
may  be  convicted  thereof,  though  they  were  entrapped  into  an  attempt 
at  its  consummation.    lb. 

18  Value  of  property.— On  a  trial  for  conspiracy  to  rob,  it  is  not  neces- 


INDEX. 


776 


eary  to  prove  the  amount  which  it  was  intondetl  to  acquiiv  liy  the  rob- 
bery, thougli  it  iH  allegutl  in  the  indictnitnt.     Jb. 

19.  The  COMMON-LAW  offexsk  of  consiiinuy  to  commit  a  felony,  malum  in 

8c,  ill  a  siater  state,  ia  indictable  and  punishaljle  in  Alabama.    lb. 

20.  Act  in  wuicii  all  must  pauticipate— Membkhs  legislative  hody  op 

COUNCIL. — An  aKreenu-nt.  entered  into  betwee-n  all,  tluit  cirtaiu  mem- 
l)ei-a.  in  numbers  sufficient  to  constitute  a  majority,  should  vote  to 
carry  out  the  i)roject,  would  be  consistent  with  the  cliaiKts  in  the  in- 
dictment. It  does  not  difler  from  any  other  combinatiun  to  execute  a 
cruuuialor  illegal  act.    Note,  p  208. 


)l     i 


M 


CONSTITUTIONAL  LAW. 

1,  Power  of  court  to  suspend  sentence.— At  common  law,  courts  of 
criminal  jurisdiction  had  power  to  suspend  sentences,  iiud  a  statute 
authoriziiif!;  tliem  to  exercise  this  functicm  is  not  in  conilict  with  the 
constitutional  provision  vesting  in  the  executive  the  exclusive  jwwer 
to  grant  reprieves  and  pai-dons.  I'eople  ex  rel,  v.  Court  of  Sessiona, 
439. 

2.  Power  of  court  to  compel  accused  to  stand  up  for  identification.— 
Every  court  of  judicature  is  iwssessed  of  the  j)owerto  reipiire  a  person 
on  trial  to  expose  his  face  to  view  or  to  compel  him  to  stand  up  in  order 
that  a  witness  may  be  enabled  to  identify  liim.  Constitutional  question 
discussed.    Peujde  v.  Gardner,  82. 

a.  Due  process  of  law— Fourteenth  amendment— Execution  op  sen- 
tence AFTER  expiration  OF  REPRIEVE.— Const.  U.  S.,  amend.  14,  pro- 
viding that  no  state  shall  deprive  any  person  of  life  witliout  "due 
process  of  law,"  does  not  authoi'ize  the  federal  courts  to  rt.'vit'w  a  con- 
viction by  a  state  court  on  account  of  errors  involving  tlic  competency 
of  jurors,  or  to  determine  whether  a  proposed  <  xecution  of  a  death 
sentence,  after  the  expiration  of  a  reprieve,  is  in  pursuance  of  law. 
In  re.  Buchanan,  494. 

4.  Right  of  court  to  discharge  jury.— Courts  of  justice  are  invested  with 
authority  to  discharge  a  jury  from  giving  any  verdict,  whenever,  in 
their  opinion,  taking  all  tlie  circumstances  into  consideration,  there  is 
a  manifest  necessity  for  the  act,  or  the  ends  of  public  justice  would 
otherwise  be  defeated,  and  to  order  a  trial  by  another  jury,  and  a  de- 
fendant is  not  thereby  twice  put  in  jeopardy,  within  the  meaning  of 
the  fifth  amendment  to  the  constitution  of  the  United  ^taiii^.— Thomp- 
son V.  United  States,  209. 

5.  Resort  to  joltinals  of  house  and  senate.— On  an  issu(>as  to  whether 
an  act  wiis  passed  in  conformity  with  the  constitutional  re(iuirement8 
as  to  procedure,  resort  may  be  had  to  the  journals  of  th(.'  two  houses  of 
the  legislature,  to  ascertain  the  steps  taken  by  each  in  its  passage. 
Robertson  v.  People,  284. 

6  Same.— Compliance  with  Const,  art.  5,  §  22,  Colorado,  which  provides 
that  "  no  bill  shall  become  a  law  except  by  vote  of  a  majority  of  all 
the  members  elected  to  each  house,  nor  unless  on  its  final  jiassage  the 
vote  be  taken  on  ayes  and  nays  and  the  names  of  those  voting  be  en- 
tered on  the  journal,"  is  shown  by  evidence  that  the  liouso  passed  a  bill 
as  it  came  from  the  senate,  with  an  amendment  thereto,  l>y  an  aye  and 
nay  vote,  and  by  another  aye  and  nay  vote  receded  from  its  amend- 
ment after  an  unsuccessful  conference  thereon,    lb. 

7  Banking  laws  not  class  legislation.— Laws  1885,  p.  50.  prov-idingfor 
the  punishment  of  a  person  receiving  deposits  m  a  bank  with  knowl- 
edge of  iti  insolvency,  is  not  unconstitutional  as  bemg  class  legisla- 
tion,  lb. 


\ 


•76 


AMERICAN  CRIMINAL  REPORTS. 


8,  iMrmsdXMF.NT  UNDER  LAWS  1885,  p.  50,  for  recoiviiiR  flrjKisits  in  fili.in 
witli  knowhMlne  of  its  inaolvency,  iH  f  r  a  tnimlt'iiu'iiiior,  and  not  fi 
a  debt,  so  oh  to  couiu  witliin  tliu  constitutional  proliibitiou.     Ih. 

9.  The  LEOisr-.VTUUE  has  power  to  declare  that  tlie  failure  of  any  Imiik 
witiiin  tiiirty  days  from  tiie  time  a  deposit  was  made  shall  he  priiiiti 
facie  evidence  of  iinowiedge  on  tlie  part  of  the  hanlter  that  the  hank 
waa  insolvent  at  the  time  the  deixjsit  was  made.     lb. 

10.  Public  trial  under  constitution  of  MichiKan,  whicli  declares,  "  In 
every  criminal  j)roBecution  tiie  accused  shall  have  the  ri^lit  of  a  speedy 
and  public  trial."  and  the  statute,  wliich  provides  tliat  '•  the  sittinj;s  of 
every  court  within  tins  state  shall  he  public  " —  it  wius  error  for  tlie 
court,  where  one  was  on  trial  for  murder,  to  order  the  uHicers  to  ex- 
clude all  from  the  court  room  except  "  respectable  citizens."  I'cujili'  v. 
Murray,  71». 

11.  Same.— The  fact  that  entrance  to  the  court  room  was  |xissible  throuj;h 
the  clerk's  oiHce.  or  other  private  ways,  was  no  answer  to  the  refusal  of 
admission  at  the  public  entrance.     lb, 

12.  Meet  witnesses  face  to  pace.— The  constitutional  provision  that  the 
accused  shall  have  the  right  "  to  meet  the  witnesses  face  to  face"  doe- 
not  render  inadmissible  a  dept)sition  of  a  witness  ft)r  the  state,  taken 
defendant's  i)reseni'e,  and  to  the  taking  of  which  he  expressly  consent 
for  the  puriKJse  of  obtaining  a  continuance.    State  v.  Bowl^Tr,  305. 

13.  When  one  act  may  constitute  an  offense  against  two  sovereignties. 
In  re  Murjiliy,  122  and  note. 

14.  Property  obtained  by  unlawful  search  admissible  in  evidence. 
Shields  v.  Shtte,  140. 

15.  Right  op  accused  to  be  present  during  trial.— Minutes  of  clerk 
must  show  that  he  was  present  when  verdict  was  rendered  and  when 
sentence  waa  pronounced.    French  v.  State,  348.    Note,  j).  354. 

16.  A  statute  making  jurors  judges  of  the  law  is  unconstitutional. 
State  V.  Burpee,  530. 

17.  In  felonies  accused  can  not  waive  trial  by  jury.     Note,  p.  354. 

18.  Title  of  act,  amendment  by  reference  to  title.    State  v.  Trulson,  343. 

CONTEMPT  OF  COURT. 


1.  Civil  and  criminal. — Contempts  of  court  are  of  two  kinds— civil  and 
criminal.  When  a  party  refuses  to  do  something  which  he  is  ordered 
to  do  for  the  benefit  or  advantage  of  the  opposite  party,  such  as  diso- 
bedience of  an  order  of  court  for  the  payment  of  costs,  or  non-perform- 
ance of  the  awards  of  arbitrators,  the  order  is  looked  upon  us  a  civil 
execution  for  the  benefit  of  the  injured  party,  although  the  v^roceed- 
ings  are  carried  on  in  the  shape  of  a  criminaljn'ocess:  and  he  stands 
committed  until  lie  complies  with  the  order.  The  order  iu  such  case  is 
not  punitive,  but  coercive.    State  v.  Knight  ct  al.,  221. 

2.  Same.— If  the  rvmtempt  consists  in  doing  a  forbidden  act.  injurious  to 
the  opposite  party,  the  process  is  criminal,  and  conviction  is  followed 
by  line  and  imprisonment,  or  both.    This  is  purely  punitive.    Id. 

3.  Writ  of  urrok. — Under  statutes  of  South  Dakota  writs  of  error  are  used 
to  remove  to  this  court  for  examination  and  review  the  record  in  all 
criminal  actions,  and  they  are  allowed  in  all  criminal  cases  from  the 
final  decisions  of  inferior  courts.  Criminal  contempt  proceedhigs  are 
properly  brought  to  this  court  by  writ  of  error.    Id. 


INDEX.  /J-- 

4  SvMR. -While  an  appoUato  court  hm  .iurii..lirtion  to  iw  i.w  nn  onlrr 
,nuushn«lura(T..n.na  «.nt..nmt.HO  far  uh  t.,  as.vrtain  wlw  U,..  ' 
curt  i.ill.itu.K'  tiK'  lunuHhnu.ut  lia.l  ju.is.U.tu.n.  ur  as  to  wlut  ..r  i  . 
won  s  or  acts  dwii-Kvl  con«titut(Ml  a  .•onfMnpt.  yot  tlu-  .LMisicn  of  ■ 
court  n.akuiK  it  m  no  to  be  HkIuIv  review...!;  Itn  iu.lKM,..nt  si ...  I 
not  b.3  reverse.!  unless  it  in  ai.parent  that  no  ...nt.Mnia  lu.s  1  •.,"'. 
m.tte,l,  or  that  the  curt  exer.ise.l  its  auth.,rity  in  a  iaprieious  o. .,  "s- 
Bive  or  arbitrary  manner.    Id.  '  ."u^o 

5.  An  in.iuncti()N  okdek  is  in  a  certain  sense  a  Muiwrs,;hvM,  an.l  operat.-^ 
to  HUHi)en.l  the  in-oceedinK's  enjoined  by  it.  An  atta.lnn.nl  f.'r  e..n'- 
teniptwill  lie  a^Minst  ..ne  t.)  whom  tlie  writ  is  .lin.t.Ml.  or  who  has 
notice  of  Its  issuanc-e.  if  i„  the  face  of  its  restrainiiiK  lorce  sucii  i.erson 
proceeds  ni  tlie  matter  enjoined.    Id.  ' 

0.  Civil  AND  Criminal  contempt.  ju.lKinent.  jurisdiction, /(./^.^.s  corimH, 

legislative  power  to  punish,  or.ler  of  court,  etc.     Note,  p.  2'i\i. 

CONTINUANCE. 

Motions  for  continuance  are  addressed  t.)  l  he  discretion  of  the  tria!  court 
and  its  actions  thereon  will  not  be  disturbed  unless  there  aiipears  to 
have  been  u  clear  abuse  thereof.    Clark  v.  State,  ejc  rd.  Cuiey,  117. 

CORPORATIONS. 

Indictable  at  common  law— Mude  of  BiiiNdiNO  it  before  coi-rt.— a 
corporation  is  indictable  at  connnon  law  and  it  luav  l)e  l)rouKht  into 
court  by  compulsion,  if  necessary.  The  common  law'of  a  state  will  he 
recognized  bv  the  courts  whether  or  not  it  Wiis  known  in  Engian.l,  and 
a  judt,'m.'nt  by  default  a^'ainst  a  corporation,  similar  to  that  which  it  is 
customary  to  render  in  civil  cases,  may  be  enforced  against  a  corj^ra- 
tion  notwithstanding  the  lack  of  precedents  in  criminal  cases  to  justify 
such  a  judgment.     Com.  v.  Lehigh  Valley  R.  Co.,  370. 

COURTS. 

1.  Power  to  suspend  sentence  at  common  law.— Courts  of  criminal  juris- 

diction had  power  to  suspend  sentences,  and  a  law  permitting  criminal 
courts  to  suspend  sentence  during  good  behavior  of  tlie  convict  (Iocs 
not  ctmllict  with  the  constitutional  provision  giving  to  tie  executive 
the  exclusive  power  to  grant  reprieves  and  pardons.  Pijple  ex  rel.  v. 
Court  of  Sessions,  439. 

2.  Jurors  not  judoes  op  the  law.— The  doctrine  that  jui-ors  are  para- 

mount judges  of  the  law,  as  well  as  of  the  facts,  in  criminal  cases,  is 
contrary  to  the  common  law;  contrary  to  the  constitution  (,'K.  I,;  and 
contrary,  also,  to  Fed.  Const.,  art.  6,  declaring  such  constitution,  and 
all  laws  in  pursuance  thereof,  the  supreme  law,  binding  on  all  judges 
in  every  state.    State  v.  Burpee,  536. 

3.  Stay  of  sentence.— Power  of  governor  to  grant  reprieves,  and  of  court 

to  stay  sentence,  distinguished.    In  re  Buchanan.    Note,  \).  503. 

4.  The  court,  not  the  jury,  is  judge  of  the  law.    State  v.  Buj'j)t'e,  536. 

DISORDERLY   HOUSE. 

1.  An  indictment  which  charges  the  keeping  a  disord(r'.v  house,  setting 

out  the  causes  of  disorder,  among  which  causes  gaming  was  not  in- 
cluded, held,  the  defendant  in  such  a  charge  could  not  be  convicted 
of  keeping  a  common  gaining  house.  Linden  Park  Blood  Horse  Ass'n 
V.  State,  235. 

2.  Same.— Specifications  of  the  chai-acteristics  of  the  house  in  point  of  dis- 


778  AMERICAN  CRIMINAL  REPORTS. 

order  are  matters  of  the  description,  and  a  case  must  be  proved  to  an- 
swer to  them,  or  some  of  them.    Id. 

3.  House  of  prostitution  or  assignation  is  a  disorderly  house,  however 

quiet  and  peaceably  it  may  be  kept.    Note,  p.  238. 

4.  Defendant's  knowledge,  evidence,  indictment.     Note,  p.  239. 

DRUNKENNESS. 

Intoxication  may  or  not  excuse  the  commission  of  crime  or  mitigate 
the  punishment.    Note,  p.  534. 

EMBEZZLEMENT. 

1.  Members  of  club. — The  defendant  was  convicted  on  an   indictment 

drawn  under  81  and  33  Vict,  chapter  110,  section  1,  and  charging 
him  witli  having,  whilst  one  of  a  number  of  beneficial  owners  con- 
sisting of  liimself,  J.,  and  others,  embezzled  monoy  belonging  to 
such  beneficial  owners.  It  was  proved  at  the  trial  that  the  prisoner 
was  the  treasurer  and  a  member  of  a  trading  club,  which  was  an 
unregistered  association  of  more  than  twenty  persons,  such  as  is  pro- 
hibited from  being  formed  by  section  4  of  the  companies  act,  1863, 
and  that  he  received  money  belonging  to  the  association  and  failed 
to  pay  over  or  account  for  it.  Held,  that  tlie  prisoner  was  properly 
convicted.     The  Queen  v.  Tankard,  239. 

2.  Intent  to  return  money  no  defense. — Under  statute  1887,  page  81, 

providing  that  imy  person  to  whom  any  money,  projwrty  or  effects 
shall  have  been  intrusted,  who  shall  appropriate  the  same,  or  .any 
part  thereof  in  any  manner,  or  for  smy  other  y)ur|X)se  than  that  for 
wliich  the  same  was  intrusted,  shall  be  guilty  of  embezzlement,  an 
indictment  need  not  allege  that  defendant  appropriated  the  property 
wilfully,  feloniously,  or  with  intent  to  steal,  as  the  offense  is  com- 
plete \vhen  appropriation  is  made,  thougii  he  intended  to  afterward 
replace  the  property  taken.     State  v.  Trolson,  243. 

3.  Constitutionality— Title  of  act.— Statute  1887,  page  81,  is  entitled 

"An  act  to  further  define  and  punish  embezzlement."  Section  1  de- 
fines embezzlement,  and  section  2  fixes  the  punisliinent  for  a  viola- 
tion of  section  1.  Held,  that  as  the  act  is  complete  within  itself,  and 
does  not  conflict  with  general  statutes,  sections  4834,  4635,  also  re- 
lating to  embezzlement  and  its  punishments,  it  does  not  amend  the 
former  statute,  and  hence  does  not  violate  Constitution,  article  4, 
§  17,  reifuiring  each  law  to  embrace  but  one  subject,  which  shall  be 
expressed  in  the  title,  and  that  no  law  shall  be  revived  or  jmiended 
by  reference  to  its  title  only.    lb. 

4.  Agent  of    an  express   company,— On   the  trial  of   an    indictment 

charging  the  defendant  with  the  embezzlement  of  certain  njoney 
received  as  agent  of  an  express  company  for  transmission,  the  fact 
that  the  money  so  received  was  in  the  safe,  constitutes  no  defense, 
where  defendant  was  short  in  his  accounts  with  the  comnanj'  in  an 
amount  larger  than  that  alleged  to  have  been  embezzled.     Ju. 

5.  Demand  and  refusal    unnecessary.— Since  the  crimes  act  of  Wyo- 

ming, defining  embezzlement  bv  a  clerk  or  employe  from  his  em- 
ployer, does  not  require  a  demand  and  refusal  to  i)ay  over,  jis  an  ele- 
ment of  such  crime,  an  indictment  under  such  section  need  not 
allege  such  demand  and  refusal,  Edelhoff  v.  State,  2r)6.  A  descrip- 
tion of  property  embezzled  as  *'  lawful  money  of  the  United  States 
of  America"  is  sutiicieut,  without  specifying  any  particular  note, 
coin  or  bill.    lb. 


"l"" 


INDEX. 


770 


6.  Proof  of  corpouation. -Revised  statntpts    e  'jni  ,„^  • 

tion  of  duplicate    certificateJT  im  or  o  atL  ineT'lt,  "fit  r'l": 
the  secretary  of  state,   the  other  in  th.^  ,.i.;.!i  •      L       ^  ,^^^^  ^^''*'i 

wherein  the^corporation'rbSesris''  o  i"  ^rri^ef  on"'  Section'?)^ 
provides  that  a  copy  of  tlie  certiHcate  oertifi,!,!  i ,. Tu  ^^^^^^lon  303 
state,  shall  be  evidence  of  the  eSmce  of  sul  ^V^^  secretary  of 
pany.  Held,  that  on  the  tria^of  an  indictn  t  fnr  '??*'^'\  ^'''"■ 
from  a  doniestic  corporation,  the  ex'"ten"  e  of  uch  S.n  or  tion  S 
be  shown  by  parol  evidence  as  to  the  county  in  whi/^T.^  i.l 
BScfrSy.'-^^A.'^  "^^  ""^''^'-^^  certificS^flU^S  'tUTS^o! 

7.  Several   acts  charged,  but  one  conviction. -On  the    trial   of  a 

clerk  of  a  corporation  for  embezzlement  of  !(!208.40;  under  an  indict 
ment  containing  but  one  count,  the  evidence  sL^wed  Hv,Vir„il  ? 
fendant's  duty  to  collect  rent  of  th,.  cmnmny-s  h^^^^^ 
collections  monthly;  that   he  collected  Ur^moMAylt^?tV^ 
certain  house,  for  eighteen  months,  and  each  month  Reported   the 
house  as  unoccupied,  and  did  not  remit  the  money  colleX      //W./ 
that  the  offense  of  embezzlement  was  complete  each  no  ilSnif^^^^ 
fendnnt  being  chai^a-d  with  but  one  embezzlement,  can  not  be  con- 
victed  of  eighteen  distinct  embezzlements,  treated  as  one  offense?    lb! 
^'   p.' 2S  consigned  to  employer  of  pei-son  who  appropriates  it.    Note, 

ft.  Copartner,  when  a  copartnership,  is  agent.    Note,  p.  256. 
10.  Copartner  not  guilty  of  embezzling  funds  of  his  firm.    Note,  p.  256. 
U.  Person  collecting  on  non-transferable  time  check.    Note,  p.  256. 
12.  Attorney  at  law  acting  as  agent  for  payor  of  note.    Note,  p.  256. 

ERROR  AND  APPEAL. 

1.  Circuit  court  op  appeals-Usc  of  mails  for  promoting  scheme  to 
defraud,  being  punishable  by  imprisonment  in  a  state  penitentiary  is 
an  "nifamous  crime,"  and  a  conviction  thereof  is  reviewable '  in 
supreme  court  but  not  in  circuit  court  of  appeals.    Stokes  v.  U.  S'.,  436 

2.  Habeas  corpus.— Supreme  court  of  Ohio  holds  that  an  order  of  discharge 
on  lutbeas  cor^jus  may  be  reviewed.    Henderson  v.  James,  711. 

CoNTF.MPT  proceedings  reviewed  on  error.    State  v.  Knight  et  al,  221. 

When  evidence  is  undisputed  as  to  defendant's  guilt  the  supreme  court 
will  not  reverse  for  error  in  instruction.    Edelhoff  v.  State,  256. 

EVIDENCE. 

1.  Evidence  of  the  general  reputation  of  the  accused  for  peace  and  quietude 
is  permissible  in  a  prosecution  for  murder,  though  committed  by  means 
of  poisoning.     Carr  v.  State,  80. 

2.  Expert  evidence.— It  is  error  to  permit  a  witness  upon  the  trial  of  a 
liank  t)rticer  charged  with  receiving  deixisits  when  the  bank  was  in- 
solvent, to  give  his  opinion  as  to  the  solvency  or  insolvency  of  tlie  bank. 
The  actual  condition  of  the  bank  must  be  stated.    State  v.  Myers,  108 

3.  Judgment  roll  of  a  suit  for  divorce  granted  b^  court,  but  pending  on 
appeal,  not  admissible  in  evidence.     I'eojyle  v.  Beevers,  139. 

4.  Threats  op  others.— Evidence  that  another  person  threatened  to  burn 
premises  that  accused  is  charged  with  burning,  inadmissible.  Carlton 
V.  People,  63. 


3. 
4. 


'!      1 


780 


AMERICAN  CRIMINAL  REPORTS. 


10. 

11. 
12. 

13. 
14. 


Absence  of  witness. — Evidence  that  one  who  testified  on  the  prelim- 
inary examination  is  abaent  from  the  state,  without  any  showing  as  to 
the  time  of  liis  return,  does  not  render  admissible  evidence  given  by 
him  on  such  preliminary  examination.     Thompson  et  al,  v.  State,  190. 

Substance  op  testimony  taken  by  magistrate.— The  fact  that  on  pre- 
liminary hearing  the  magistrate  failed  to  take  down  the  testimony  of 
a  witufss  in  writing,  as  required  by  statute,  will  not  prevent  him  from 
giving  the  substance  of  it  on  the  trial  in  case  the  witness  is  permanently 
absent  from  the  state.    Id. 

Res  gestae. — It  is  not  competent  for  a  party  who  has  received  a  mortal 
wound  to  state  who  inflicted  the  wound,  unless  the  statement  formed  a 
part  of  the  res  gestae  or  is  admissible  as  a  dying  declaration.  Lam- 
bright  V.  State,  383. 

Same — Exclamations,  etc. — All  declarations  or  exclamations  uttered 
by  the  parties  to  a  transaction,  and  wliich  are  contemporaneous  with 
and  accompany  it,  and  are  calculated  to  throw  light  upon  the  motives 
and  intention  of  the  parties  to  it,  are  clearly  admissible  as  parts  of  the 
res  gestae.    Id. 

Same— Declarations  of  deceased. — Each  case  must  necessarily  depend 
on  its  own  circumstances  to  determine  whether  tlie  facts  offered  are 
really  part  of  the  same  continuous  transaction.     Note,  p.  397. 

Other  offenses. — Proof  of  other  offenses  not  admissible  unless  it  is 
necessary  to  prove  a  knowledge  of  the  chai"acter  of  the  thing  of  which 
the  act  was  done,  i.  e.,  guilty  knowledge.  State  v.  Kelly,  354.  Note. 
p.  361. 

Same.— In  prosecution  for  lewdness  similar  acts  of  defendant  are  admis- 
sible.    State  V.  Slice,  363. 

Circumstantial  evidence. — Expressions  of  malice  followed  by  friendly 
relati(jnS;  money  displayed  by  defendant;  his  financial  stra'ts  before 
offense  was  committed;  all  these  may  be  given  in  evidence.  People  v. 
Johnson,  377. 


Sasie. — Inferences  to  be  drawn  from  facts  proved  (note  381).  Blood 
stains,  etc.     Note,  p.  383. 

Character  and  reputation  distinguished.— Character,  according  to 
its  legal  construction,  is  a  fact,  and  means  the  estimate  in  which  the 
individual  is  held  in  the  comnumity  in  which  he  lives:  and  it  is  not 
error  on  the  part  of  a  trial  court  to  exclude  the  knowledge  of  a  witness 
purporting  to  have  been  gained  by  personal  accpiaintance  or  dealings 
with  the  individual  whose  character  is  in  question,  a.s  only  the  gen- 
eral reputation  of  such  individual  is  admissible.    Bernekerv.State,-HH). 

15.  Motive. — One  accused  of  stealing  may  show  that  a  witness  who  testi- 
fied against  him  was  himself  accused  of  the  same  larceny.  <S7(|/l'  v. 
Burpee,  536. 

16.  Prima  facie  evidence.— Legislative  power  to  declare  certain  facts  to  be 
prima  facie  evidence.    Robertson  v.  People,  284. 

17.  Journals  of  legislative  body. — Resort  may  be  liad  to  journals  of 
legislature  to  ascertain  the  steps  taken  by  each  house  in  the  passage  of 
an  act.    Id. 

IS.  Good  character. — Proof  of  good  character  will  not  hinder  conviction 
if  the  guilt  of  the  defendant  is  plainly  proved  to  the  satisfaction  of  the 
jury,  and  so  to  instruct  the  jury  is  not  "gratuitous,  unnecessary,  argu- 
mentative and  hurtful  to  the  defendant."    Hathcock  v.  State,  705. 

19.  Dying  declarations.— How  impeached.    Note,  p.  308. 


INDEX. 


781 


''•   Note^rSf ''"""  '"•■  '"'^  ''^  '^^'^  «"  circun,stantial    evidence. 

22.  Other  OFFENSES.-Proof  of,  when  inadmissible.    State  v.  Kelly,  3.54. 

23.  Exci^vMATiONSof  bystandei-swhen  a  murder  was  committed.'  Note, 

24.  Res  oest^.— Wliat  considered  as.    Note,  p.  454. 

25.  Former  conviction  op  ACCUSED.-An  accused  mav  be  asked  on  cross- 
S^a"i'45r"        '  "'  been  confined  in  the  penitentiaiy     BaZrl'. 

27.  Seduction.— Corroborative  evidence  need  not  be  direct.    Note,  p.  623. 

28.  Lewdness. -Testimony  necessary  to  convict.  Note,  p.  364  Admissi- 
bihty  ot  testimony  of  cliiid.    Note,  p.  365.  ^  Aumissi- 

2fl.  DisouDEULY  house. -Knowledge  of   defendant-Reputation.     Note 

EXPERT  EVIDENCE. 

Comparison  of  writings -By  28  and  29  Vict.,  c.  18.  a.  8.  "Comparison 
of  a  disputed  writuig  witli  any  writing  proved  to  the  satisfaction  of  the 
.ludgeto  begenume.  shall  be  permitted  to  be  made  bv  witnesses-  and 
such  wntmgs,  and  the  evidence  of  witnesses  respecting  tlio  same  'mav 
be  submitted  to  the  court  and  jury  as  evidence  of  the  genuineness  or 
otherwise  of  the  writing  in  dispute."  Held,  that  a  witness  slving  evi- 
dence under  this  section  need  not  be  a  jirofessional  expert,  or  a  person 
whose  s'.vill  m  tlie  comparisim  of  handwritings  has  been  gained  in  the 
way  ot  his  profession  or  business.     The  Queen  v.  Silverlock,  276. 

EXTRADITION. 

1.  The  EXISTENCE  of  AN  extradition  treaty  between  the  United  states 
and  the  Hawaiian  Islands  does  not  prohibit  the  surrender  by  either  of 
a  i)erson  charged  with  a  crime  not  enumerated  in  the  treaty.  Ex  parte 
Fuss,  303. 

2.  The  settino  aside  on  motion  of  an  indictment  against  an  extradited 
prisoner,  does  not  ()i)erate  as  an  accpiittal  of  the  offense  charged,  nor  bar 
las  further  prosecution  for  the  same  offense  by  indictment  or  informa- 
tion.    Id. 

3.  Tried  for  crime  not  enumerated  in  the  treaty.    Note,  p.  309. 

4.  Procuring  arrest  by  fraud,  or  other  illegal  means,  does  not  entitle 
party  to  discliarge.     Note,  p.  310. 

5.  Dhstinction  between  extradition  and  rendition.    Note,  p.  310. 

EXTORTION. 
See  Attempt  to  Extort. 

1 .  Indictment  against  an  officer  for  receiving  excessive  fees.  Oden  v. 
State,  295. 

2.  Incumbent  under  unconstitutional  statute,  not  guilty  of,  297. 


ij 


7S2 


AMERICAN  CRIMINAL  REPORTS. 


FALSE  PRETENSES, 

1.  Fraudulent  ADVERTISEMENT. — A  count  in  an  indictment  for  obtaining 

a  cheque  by  false  pretenses  charged  that  the  defendant,  by  causing  to 
be  inserted  in  a  newspaper  a  fraudulent  advertisement  (setting  it  out), 
did  falsely  pretend  to  the  subjects  of  her  majesty,  the  queen,  that  (set- 
ting out  the  false  pi*etense),  by  means  of  wiiicn  last  mentioned  false 
pretense  lie  obtained  from  A.  a  cheque.  Held,  that  the  count  was  good, 
although  it  did  not  allege  that  the  false  pretense  was  made  to  a  jjarticu- 
lar  person.  Beg.  v.  Sowerby  (1894),  2  Q.  B.  173,  distinguished.  The 
Queen  v.  Silverlock,  276. 

2.  Indictable  false  pretense,  what  is?    False  pretense  and  promise  made 

together.     Note,  pp.  283-284. 

3.  Venue  of  the  offense.    Note,  p.  408. 

4.  Swindling — False  representations  connected  with  true  ones.  —Mate- 

riality of.    Hathcock  v.  Slate,  705. 

5.  Falsehood  and  artifice,  involving  co-operation  and  connivance  with 

a  confederate.     Note,  p.  161. 

6.  Cheatino  and  swindling  may  be  committed  by  representation  of  a  past 

fact  though  coupled  with  a  promise.     Thomas  v.  State,  158. 

FORGERY. 

1.  Although  a  check  upon  a  bank  is  in  many  respects  a  bill  of  exchange, 

yet  as  the  Penal  Code  of  Georgia  distinguishes  between  them,  in  that 
while  rendering  the  forgery  of  either  an  offense,  it  does  not  provide  for 
the  case  of  drawing  a  check  in  a  fictitious  name,  it  can  not  be  held  that 
a  check  upon  a  bank  is  a  bill  of  exchange  within  the  true  meaning 
and  intent  of  section  5453  of  the  Code.  The  instrument  involved  in 
the  present  case  being  a  check  upon  a  bank,  there  can  be  no  conviction 
under  that  count  in  the  indictment  which  describes  it  as  a  bill  of  ex- 
change and  charges  the  making  of  it  in  a  fictitious  name.  Townsend 
V.  State,  299. 

2.  Venue  oP   the  offense.  —The  mailing  of  a  forged  instrument  in  one 

county,  and  the  receipt  thereof  in  another  county  does  not  constitute 
an  uttering  in  the  first  county,  within  criminal  practice  act  of  Mon- 
tana providing  that  when  a  crime  has  been  committed  partly  in  one 
county  and  partly  in  another  county,  or  the  acts  or  effects  constituting 
or  requisite  to  the'consummation  of  tlie  offense  occur  in  several  counties, 
the  jurisdiction  is  in  either.    State  v.  Hudson,  742. 

3.  Uttering  and  publishing. — Note  purporting  to  have  be«n  executed  on 

Sunday.    What  subject  of  forgery,  etc.    Note,  p.  301-302. 

GAMING. 

Indictment. — An  indictment  which  charges  the  keeping  of  a  disorderly 
house,  setting  out  the  causes  of  disorder,  among  which  causes  gaming 
was  not  included,  iield.  the  defendant  under  such  a  charge  could  not 
be  convicted  of  keeping  a  common  gaming  house.  Linden  Park 
Blood  Horse  Ass'n  v.  State,  235. 

GRAND  JURY. 

1.  Testimony  of  members  of  grand  jury  not  admissible  to  prove  that  prose- 

cuting attorney  was  present  during  their  investigation  of  a  charge  and 
while  expressing  their  opinions  and  finding  indictment.  State  v.  John- 
son, 7. 

2.  Statements  of  PROSECCTiNa  attorney  as  to  what  occurred  in  grand  jury 

room,  inadmissible.    lb. 


INDEX. 


HABEAS  CORPUS. 


783 


1.  Sentence— Court  has  no  power  to  suspend.— A  court  has  no  power  to 
suspend  execution  of  sentence,  except  as  incident  to  a  writ  of  error  or  on 
some  other  legal  ground;  and  liaving  sentenced  defendant  to  pay  a  fine. 
and  to  stand  committed  until  it  was  paid,  not  exceeding  six  months,  tlie 
term  of  imprisonment  for  failure  to  pay  tlie  fine  commenced  at  once; 
and  where  the  court  without  legal  cause  suspended  execution  of  the 
sentence  till  further  order,  and  no  further  order  was  made  till  after  ex- 
piration of  the  six  months,  defendant  could  not  thereafter  be  com- 
mitted, though  the  fine  was  not  paid,  and  the  prisoner  may  be  released 
on  habeas  corpus.    In  re  Webb,  702. 

3.  Review  of  order.— The  Supreme  Court  of  Ohio  holds  that  a  final  order 
of  discharge  on  lutbeas  corpus  may  be  reviewed  and  reversed  on  error 
by  a  higlier  court.    Henderson  v.  James,  711. 

3.  Same. — In  such  case  the  order  of  discharge  may  be  stayed  by  the  higher 

court,  under  the  statute,  without  fixing  any  terms  other  than  the  stay 
of  the  execution  of  the  order.    Id. 

4.  Jurisdiction.— How  far  may  court  inquire  into  validity  of  imprisonment 

for  contempt.     Note,  p.  229. 

HUSBAND  AND  WIFE. 

See  Abandonment. 

1.  The  wife  of  a  person  accused  of  abandonment  is  a  competent  witness  to 

prove  the  charge.    Note,  p.  3. 

2.  Care  of  child.— Abandoned  wife  entitled  to.    Note,  p.  7. 

3.  Liability  for  support  furnished.    Note,  p.  7. 

4.  Exemptions.— Woman  is  "  a  family  "  if  deserted  by  her  hus1)and.    Note, 

p.  6. 

5.  Proof  of  marriage. — Witnesses  present  at  maiTiage,  testimony  of  min- 

ister who  performed  the  ceremony.     Com.  v.  Hayden,  408. 

6  Husband  may  be  guiltv  of  rape  upon  his  wife,  as  accessory.  Note, 
p.  448. 

IMPRISONMENT. 
See  Habeas  Corpus,  Pardon,  Reprieve,  Sentence. 


I     I 


INDICTMENT. 

1.  Conspiracy  to  defraud  the  United  States  of  tracts  of  land  by  means  of 
false  and  fictitious  entries  under  the  homestead  laws;  it  is  not  necessary 
to  specify  the  tracts  by  number  of  section,  township  and  range.  Deahj 
V.  U.  S.,  161. 

2  An  indictment  against  an  officer  for  receiving  excessive  fees,  must 

allege  that  the  fees  were  claimed  to  be  due  as  fees  for  oflOicial  services. 
State  V.  Odcn,  295. 

3  The  joinder  in  an  indictment  for  an  offense,  of  a  count  for  a  lesser  of- 

fense, or  for  an  attempt  to  commit  the  same,  is  mere  sm-plusage.  State 
V.  Brown,  310. 

4  An  indictment  for  highway  robbery,  charging  the  taking  of  "  ten  dol- 
'     lars  in  money,"  sufflciently  alleges  that  money  "of  the  value  of  ten 

dollars  "  was  taken,  and  is  not  objectionable  as  failing  to  designate  the 
value  of  the  money  taken.    Id. 


784 


AMERICAN  CRIMINAL  REPORTS. 


5.  Same.  —An  indictment  is  not  bad  for  failure  to  state  that  tlofondnnt  stole 
the  money;  the  allegation  that  he  "  feloniously^  did  take  and  carry 
away  "  the  money,  being  a  sufficient  allegation  m  that  regard.     Id. 

6.  A  CHAUdE  IN  su>^H  INDICTMENT,  that  defendant  "  did  make  an  assault," 
and  "  put  in  bodily  fear  and  danger  of  his  life,"  and  "  then  and  there 
feloniously  and  violently  did  seize,  take  and  carry  away"  t<m  dollars 
from  the  prosecutor,  and  that  the  taking  was  accomplished  "  with  force 
and  arms,"  sufficiently  alleges  the  use  of  the  force.    Id. 

7.  ROBBEUY. — Description  of  the  property  taken  as  certain  money,  etc.,  of 
the  goods  and  chattels  of  said  J.  N.  E.,  sufficient.    State  v.  Perky,  504. 

8.  Riot.— Requisite  of  indictment.    Blackicell  v.  State,  583, 

9.  Statutory  crime. — An  indictment  should  charge  the  crime  alleged  to 
have  been  committed  with  precision  and  certainty,  and  every  ingredi- 
ent of  which  it  is  composed  must  be  accurately  and  clearly  alleged;  but 
it  is  not  necessary  in  framing  it  to  set  up  an  impracticable  standard  of 
particularity,  whereby  the  government  may  be  entrapi)ed  int;>  making 
allegations  which  it  would  be  impossible  to  prove.     Evans  v.  U.  S.,  068. 

10.  Same. — Applying  this  rule  the  eighth  count  in  the  indictment,  charging 
the  prisoner  with  unlawfully  procuring  the  surrender  and  delivery  to 
himself  of  the  funds  of  a  national  bank  of  which  he  was  a  director,  and 
the  fourteenth  count  charging  him  with  knowingly  and  fraudulently 
aiding  in  procuring  the  discount  of  unsecured  paper  by  the  l)ank,  are 
examined  in  detail,  and  are  held  to  be  sufficient  to  sustain  the  convic- 
tion.    Id. 

11.  A  CONSPIRACY  TO  C0M5IIT  AN  OFFENSE  AGAINST  THE  UNITED  STATES 
is  not  a  felony  at  common  law;  and  if  made  a  felony  by  statute,  an  in- 
dictment for  a  conspiracy  is  not  defective  by  reijson  of  failing  to  aver 
that  it  was  feloniously  entered  into.  Bcnnon  t&  Mulkey  v.  United  States, 
338. 

12.  In  an  INDICTMENT  FOR  A  CONSPIRACY  under  Rev.  Stat.,  i?  5440,  the  fact 
of  conspiring  must  be  charged  against  all  the  conspirators,  but  the  do- 
ing of  overt  acts  in  furtlierance  of  the  conspiracy  may  be  chai'ged  onl}' 
against  those  who  committed  them.     lb. 

13.  Errors  not  excepted  to. — It  is  unnecessary  to  consider  in  detail  errors 
which  do  not  appear  in  the  bill  of  exceptions,  or  which  do  not  appear 
to  have  been  excepted  to  on  the  trial,  or  which  seem  to  have  been 
quite  immaterial,  so  far  aa  excepted  to.    lb. 

14.  Chinese  exclusion  act, — This  was  a  writ  of  error  to  review  a  convic- 
tion of  the  plaintiffs  in  error,  who  were  jointly  indicted  with  twenty- 
five  others  for  conspiracy  "  to  commit  an  offense  against  the  United 
States  "  in  aiding  and  abetting  the  landing  in  the  United  States  of  Chi- 
nese laborers  in  violation  of  the  exclusion  act,     lb. 

15  The  offenses  op  burglary  and  an  assault  with  intent  to  commit  rape 

are  not  cognate  offenses,  which  may  be  joined  in  different  counts  of  the 
same  indictment.    State  v.  Fitzsiinon,  343, 

16  On  a  prosecution  for  assault  with  intent  to  commit  rape,  while  the 

character  of  the  prosecutrix  for  chastity  may  be  attacked,  specific  acts 
of  improper  conduct  with  other  men  can  not  be  shown,     lb. 

17  On  a  prosecution  for  burglary,  the  fact  that  defendant  entered  the 

house  at  two  different  times  on  the  same  night  will  not  necessitate  an 
election  by  the  state  as  to  which  entry  it  will  go  to  the  jury  on,  where 
both  entries  were  made  for  the  same  purpose,  and  defendant  was 
frightened  away  the  first  timi.    lb, 

18  Presumption  that  names  were  indorsed.— The  indorsement  of  the 

name  of  a  witness  on  the  copy  of  the  inforjuation  contained  in  the  tran- 


INDEX. 


785 


script  of  the  caae  raises  the  presumption  that  such  inflovsemont  was 
luade  at  the  proper  tune,  and,  in  thy  absence  of  proof  to  the  contrary 
sucli  presumption  will  prevail.    Beniickev  v.  State,  4(50.  ' 

19.  Robbery. — Allegation  of  ownership.    Note,  p.  594. 

20.  DuPLlclTY-FoiiaEUY—UTTEKiNG.— An  information  which  rhartccs  the 
forgery  of  an  instrument,  and  the  fraudulently  uttering;  of  the  same  in- 
strument by  the  same  person,  charges  but  one  crime,  and  in  case  of 
conviction,  but  one  penalty  can  be  inHicted.    In  re  WaMi,  051. 

21.  The  word  "  feloniously"  is  not  necessary  in  an  indictment  for  a  fel- 
ony created  and  defined  by  statute.    Higgins  v.  Com.,  20. 

23.  SCFFiciENCY  of  INDICTMENT  for  an  assault  with  intent  to  kill  by  use  of 
poison.     Note,  p.  82. 

23.  Conspiracy  to  rob.— Time  and  place,  jurisdiction  as  to  conspiracy,  en- 
tered into  in  sister  state.     Thompson  v.  State,  199. 

24.  Disorderly  house.    Note,  p.  209. 

25.  Embezzlement.— Indictment  need  not  allege  that  defendant  appropri- 
ated the  money  wilfully,  feloniously  or  with  intent  to  steal.  State  v 
Trulson,  243. 

26.  Joinder  op  counts  and  persons.— Two  offenses  arising  from  same 
transaction.     Note,  p.  348. 

27.  Larceny  and  burglary  can  not  be  joined.    Note,  p.  348. 

28.  False  pretenses.— Accusation  must  charge  facts.    Note,  p.  161. 

INFAMOUS  CRIME. 

"Not  reviewable  in  circuit  court  of  appeals.— The  use  of  the  mails 
for  promoting  a  scheme  to  defraud  (Rev.  St..  S  5480).  bein'j;  punishable 
by  imprisonment  in  a  state  penitentiary  not  exceeding  eighteen 
months,  is  an  "infamous  crime;"'  and  hence  a  conviction  thereof  is 
reviewable  on  error  in  supreme  court,  and  not  in  the  circuit  court  of 
appeals.    Stokes  v.  U.  S. ,  436. 

INSANITY. 

1.  Error  to  try  accused  by  same  jury  impaneled  to  pass  on  question 
of  insanity.— Under  a  statute  providing  that  if,  upon  the  preliminary 
trial  of  a  special  issue  of  insanity,  the  jury  shall  be  unable  to  agree,  the 
court  shall  "discharge  them  from  tlie  further  consideration  of  such 
issue,"  and,  unless  the  plea  of  insanity  be  withdrawn,  "  fortliwith  order 
the  trial  upon  the  plea  of  not  guilty  to  proceed,  and  the  question  of  in- 
sanity involved  in  such  special  issue  shall  be  tried  and  determined  by 
the  jury,  with  the  plea  of  not  guilty,"  where  the  jury  disagrees,  it  is 
error  to  order  the  trial  upon  the  plesis  of  not  guilty  and  insanity  to  pro- 
ceed before  the  same  jury.     French  v.  State,  348. 

2.  Presence  op  accused  during  trial.— It  is  the  constitutional  right  of 
the  accused  to  be  present  during  the  trial,  and  where  the  minutes  of  the 
clerk  and  the  record  are  silent  on  that  point,  a  conviction  for  murder 
will  be  set  aside.    French  v.  Slate,  348. 

3.  A  court  must  see  reasonable  ground  to  doubt  the  sanity  of  a  person 
about  to  be  tried  for  felony  before  impaneling  a  jury  to  imiuire  as  to 
liis  sanity.  The  court  may  inspect  and  examine  the  prisoner,  consider 
his  action  and  demeanor,  read  affidavits,  inquire  of  physicians  and  oth- 
ers touching  his  then  mental  condition.  The  decision  of  the  trial  court 
will  have  a  very  weighty,  if  not  conclusive,  influence  in  the  appellate 

50 


t : 


786 


AMERICAN  CRIMINAL  REPORTS. 


court,  and  will  not  be  reversed  if  at  all.  unless  it  very  manifestlv  np- 
pears  that  the  decision  was  wrong,  or  that  the  court  abused  the  discre- 
tion lodged  with  it  by  the  statute.    State  v.  Harrison,  626. 

Partial  insanity— Irresistible  impulse.— A  person  partially  insane  is 
yet  responsible  for  a  criminal  act  if,  at  the  time  of  the  act,  he  knows 
right  from  wrong,  and  knows  the  nature  and  character  of  the  particnlnr 
act  and  its  consequences,  and  knows  that  it  is  wrong  and  is  hurtful  to 
another,  and  deserves  punishment.  In  such  case  no  mere  irresistible 
impulse  to  do  the  act  will  exempt  him  from  criminal  responsibility  for 
Buch  act.    Id, 


INSTRUCTIONS. 

1.  "  Insolvency."— Meaning  of— In  respect  to  receiving  deposits  by  offi- 
cers of  bank.    State  v.  Myers,  108. 

2,  Reasonable  doubt  not  as  to  isolated  fact. —When  the  court  had 
charged  that  if  there  was  a  reasonable  doubt  of  the  existence  of  any 
fact  essential  to  constitute  murder  in  the  first  degree,  such  doubt  inust 
be  resolved  in  favor  of  the  defendant,  it  was  not  error  to  refuse  a 
request  to  charge  that  if  there  was  a  reasonable  doubt,  wliether  a  par- 
ticular fact,  i.  e.,  an  intent  to  kill,  existed,  because  of  another  particu- 
lar fact,  i.  e.,  intoxication,  the  jury  could  not  return  a  verdict  in  the 
first  degree.     Warner  v.  State,  526. 


3.  Conspiracy  to  defraud, 
161. 


-Overt  act — Jurisdiction.    See  Dealy  v.  U.  S., 


Convinced  as  jurors  when  convinced  as  men.— It  is  proper  to  refuse 
a  charge  that  the  jurors  should  be  convinced  as  jurors  when  they 
would  be  convinced  as  men,  and  should  doubt  as  jurors  when  they 
would  doubt  as  men;  because  it  eliminates  the  oath  and  the  responsi- 
bility of  the  juror.    People  v.  Johnson,  377. 


5.  Reasonable  doubt. — It  is  proper  to  instruct  the  jury  that  "  the  reason- 
able doubt  the  jury  are  permitted  to  entertain  miist  be  as  to  tlie  guilt  of 
the  accused  on  the  whole  of  the  evidence,  and  not  as  to  any  particular 
fact  in  the  case,"  and  to  refuse  to  instruct  them  to  acquit  if  they  enter- 
tain any  reasonable  doubt  as  to  defendant's  presence  at  the  scene  of  the 
crime  when  it  occurred.    Carlton  v.  People,  62. 

6.  Hypothesis  consistent  with  innocence.— An  instruction  that,  to  obtain 
a  conviction  on  circumstantial  evidence  alone,  the  people  must  show 
facts  and  circumstances  absolutely  inconsistent,  on  any  reasonable  hy- 
pothesis, with  the  innocence  of  the  accused,  and  incapable  of  explana- 
tion on  any  other  theory  than  that  of  his  guilt,  is  erroneous,  since  cir- 
cumstantial evidence  which  convinces  the  jury,  to  a  moral  certainty, 
of  defendant's  guilt,  is  sufficient.    Id. 

7.  An  instruction  which  directs  the  attention  of  the  jury  to  the  testimony 
of  particular  witnesses  is  properly  refused.     Tluitnjison  et  al.  v.  State,  199. 

8.  Hypothesis  othep.  than  guilt  refused.— On  a  trial  for  conspiring  to 
rob,  it  was  proper  to  refuse  an  instruction  that,  if  the  jury  could  ac- 
count for  defendant's  presence  in  the  house  where  the  robbery  was  to 
be  committed  on  any  other  reasonable  hypothesis  than  that  of  guilt,  it 
was  their  duty  to  acquit,  as  the  defendant  might  have  been  lawfully  at 
such  house,  but  yet  be  guilty  of  conspiracy  to  rob.    Id, 

9.  AUBI.— A  refusal  to  charge  that  if  the  jury  believe  the  testimony  of 
certain  witnesses  as  to  the  whereabouts  of  defendant  at  the  time  of  the 
alleged  offense,  they  will  find  the  defendant  not  guilty,  was  proper.    Id, 


Iscrt'- 


peia 

plows 

■ular 

fill  to 

}til)le 

|y  for 


offi- 


INDEX. 


787 


10, 


Cautiox  as  to  certain  TESTiMONY.-An  instruction  that  the  iun- should 
I'onsuler  the  testimonj'  of  a  certain  witness  on  the  preliminary  exami- 
nation with  extreme  caution.  "  coming  to  them.  a«  it  does,  by  witnessi^ 
who  can  t  remember  all  his  testimony,  that  the  same  is  not  in  writinir 
and  the  recollection  of  the  witnesses  indistinct."  was  properly  refused 
as  assuming  an  a  fact  what  it  was  the  duty  of  the  jury  to  determine' 
and  as  being  argumentative.    Id.  ' 

11.  Seduction.— Previous  chaste  character,  presumption  of  innocence-  nre- 
sumption  of  chastity.    Barfcerw.  Com.,  614. 

12.  Same. — Reasonable  doubt,    lb. 

18.  Where  specific  charge  not  required.— Where  the  trial  judge  states 
in  his  charge  to  the  jury,  principles  of  law  applicable  to  the  facts  in  the 
case,  he  is  not  required  to  give  an  additional  charge,  which  more  spe- 
cifically directs  the  attention  of  the  jury  to  the  application  of  the  law 
to  particular  facts.    State  v.  Spears,  632. 

14.  Drunkenness  may  or  may  not  excuse  the  commission  of  crime  or  miti- 
gate the  punishment.    Note,  p.  534. 


JEOPARDY. 

1.  One  act  constitutino  two  offenses.— Question  as  to  when  one  act 
may  constitute  an  offense  against  two  sovereignties.  Inre  Muruhu. 
122  and  note.  ^  "' 

See  also  Constitutional  Law,  4. 

2.  Setting  aside  an  indictment  on  motion  of  an  extradited  person  does 
not  o[>erate  as  an  acquittal.     Ex  Pnrte  Fos8,  303. 

3.  Where  record  shows  defendant's  consent  to  discharge  of  jurv,  defense 
of  former  jeopardy  is  unavailing.  Note,  p.  606.  And  the  rule  is  the 
same  where  the  record  is  silent  on  the  subject.    lb. 

4.  Public  trial. — Where  a  person  accused  of  crime  is  denied  a  constitu- 
tional right,  setting  aside  the  verdict  and  judgment  does  not  operate  as 
a  discharge  of  accused.    People  v.  Murray,  719. 

JURORS  AND  JURY. 

1.  Separation  of  jury— Presumption.— A  mere  separation  of  a  jury 
will  not  entitle  the  person  to  a  new  trial;  but  where  there  has  been  an 
improper  separation  of  the  jury  during  the  trial,  if  the  verdict  is  against 
the  prisoner,  he  is  entitled  t )  the  benefit  of  the  presumption  that  such 
separation  has  been  prejudicial  to  him,  and  the  burden  of  proof  is  upon 
the  state  to  sliow  beyond  a  reasonable  doubt  that  the  prisoner  has  suf- 
fered no  injury  by  reason  of  the  separation.  If  the  prosecution  fails  to 
do  this,  tlie  veVdict  will  be  set  aside.    State  v.  Harrison,  626. 

2.  Same. — The  same  rule  should  be  applied  to  all  cases  of  misconduct  or 
irregularity  by  the  jury,  during  the  trial,  which  are  of  such  a  character 
as  to  raise  a  presumption  that  the  prisoner  was  prejudiced  thereby. 
16. 

3.  Same— Testimony  of  jurors.— The  testimony  of  jurors  may  be  received 
to  disprove  or  explain  any  such  separation,  misconduct  or  irregiilarity; 
but  their  testimony  will  not  be  received  to  show  by  what  motive  they 
were  actuated,  or  that  any  admitted  fact,  misconduct,  or  irregularity, 
had  no  influence  or  effect  upon  their  minds  in  producing  the  verdict. 
In  any  case,  where  proper  at  all,  the  testimony  of  jurors  should  be 
received  with  great  caution.    lb. 

4.  Mere  business  conversation  by  a  juror  with  another  person,  entirely 


i 

J 


788 


AMERICAN  CRIMINAL  REPORTS. 


foroiRn  to  tlio  cnsi*  on  trial,  in  tho  proaonce  and  hearing  of  the  sherift 
and  tlie  other  jurors,  will  not  avoid  the  verdict,    lb, 

5.  To  SET  ASIDE  A  VERDICT  because  of  an  opinion  entertained  by  a  juror 

l)efore  he  was  sworn,  it  ouj^lit  to  appear  tiiat  such  opini<jn  was  not 
merely  unsubstantial  and  liypothetical,  but  sm^h  as  would  have  ex- 
cluded him  from  the  jury  had  it  been  known  before  he  was  sworn. 
lb. 

6.  Would  vou  convict  on  circumstantial  evidence?— This  is  not   a 

proper  question  to  ask  a  venire  man.     Luinbriyht  v.  State,  383. 

7.  Newspaper  account— Expression  of   opinion.— A  venire  man   had 

read  in  the  papers  all  about  the  trial  of  S.  for  the  murder  of  O. .  and 
liad  formed,  and  still  entertained,  an  opinion  as  to  his  >:;uilt  or  inno- 
cence, but  knew  nothing  about  the  case  against  the  accused,  who  were 
being  tried  for  the  murder  of  G.,  and  the  opinion  which  had  been 
formed  in  reference  to  the  guilt  or  innocence  of  S.  would  have  nothing 
to  do  with  the  case  against  the  accused.  Held,  that  the  venire  man 
was  a  competent  juror.    Id, 

8.  A  statute  making  jury  judges  of  the  law  is  unconstitutional.    State  v, 

Burpee,  536. 

LARCENY. 

1.  Proof  of  other  offenses  inadmissible.— On  trial  for  larceny,  evi- 

dence of  an  accomplice,  that  after  the  return  of  himself  and  defendant 
to  the  hitter's  home  with  the  stolen  goods  they  went  out  tlie  same  niglit, 
and  stole  other  goods,  is  inadmissible.    State  v,  Kelley,  b.'54. 

2.  Possession  obtained  by  fraud. — Where  the  owner  of  money  or  goods 

parts  with  the  posst^ssion  of  them  under  a  contract  induced  by  fraud, 
but  does  not  intend  to  part  with  the  property  in  them  until  the  other 
party  to  the  contract  has  fulfilled  his  part  of  the  bargain,  the  i)orson  so 
fraudulently  obtaining  possession  of  the  money  or  goods  may  be  con- 
victed of  larceny.     The  Queen  v.  Ru^sett,  511. 

3.  Larceny  by  a  trick. — The  prisoner  agreed  at  a  fair  to  sell  a  horse  to  the 

prosecutor  for  231,,  of  which  8/.  was  to  be  paid  to  the  prisoner  at  once, 
and  the  remainder  upon  the  deliverv  of  the  horse.  The  i)rosecutor 
handed  91.  to  the  prisoner,  who  signed  a  receipt  for  the  money;  by  the 
receipt  it  was  stated  that  the  balance  was  to  be  paid  ujwn "delivery. 
The  prisoner  never  delivered  the  horse  to  the  prosecutor,  but  caused  it 
to  be  removed  from  the  fair  under  circumstances  from  which  the  jui-y 
inferred  that  he  had  never  intended  to  deliver  it.  Held,  that  the  pris- 
oner was  rightly  convicted  of  larceny  by  a  trick.     Id. 

4.  Bank  paying  by  mistake  more  money  than  a  check  calls  for  is  not 

larceny  in  the  receiver.    Fulvher  v.  State,  734. 

5.  Larceny  by  trick  or  fraud.— Subject  discussed.    Note,  p.  51G. 


LEWDNESS. 

Evidence— Similar  acts  of  exposure.— On  trial  of  and  indictment  for 
lewdness,  committed  by  the  wilful  exposure  of  defendant's  person  on 
a  particular  day,  in  a  public  place,  in  the  presence  of  tlie  prosecuting 
witness,  it  is  not  error  to  admit  evidence  of  similar  acts  by  defendant  at 
the  same  place,  on  the  same  day,  and  on  the  preceding  day,  and  in 
the  presence  of  other  persons  than  the  prosecuting  witness,  where,  by 
instructions,  the  consideration  of  such  evidence  is  limited  to  the  deter- 
mination of  whether  or  not  the  act  charged  was  wilfully  done.  State 
V.  Slice,  362. 


^ 


INDEX. 


789 


IiorifT 

juror 
not 
p  ox- 
vorn, 

ot   a 

lin.I 
and 
inno- 
were 
licen 
tliinff 
man 


8.  iNrnNT-lNnKCENT  PnorosAL.- On  such  trial  it  is  proper,  na  honrim' on  tlu- 
qiit-Htionof  intent,  to  lulinit  evidence  tliat.  in  connection  will? on,,  of 
BHuli  utiier  acts,  defendant  uiuile  an  indecent  proposal  to  a  lady.    Jd. 

8.  What  constitutes.—"  Open  and  posH  lewdnesH  "  Ih  not  eciuivalent  to  tho 
phrase  '•  groaa  lewdnesa  in  an  open  place."    Note,  p.  a04. 

LIBEL. 

SI.ANO  TERM.— Where  langnaRe  used  in  slander  is  a  slnnp:  term  and  am- 
biguous, testimony  explaining  what  the  witness  understood  by  it  is 
aduiiusible.     Dickson  v.  Stale,  OoU. 

MANSLAUCJIITER. 

1.  Conviction  OP  ONE  NO  EVIDENCE  a(iaixst  co-defendant.— The  convic- 
tion of  one  of  two  persons  jointly  imUcted  for  niansiaugliter  com- 
mitted by  means  of  abortion  is  liot  evidence  tending  to  show  the 
other's  guilt.    State  v.  Buicker,  305. 

2.  Duty  to  supply  food  to  helpless  peusoxs.— The  prisoner,  a  woman 
of  full  age  and  without  any  means  of  her  own,  lived  with,  and  was 
maintained  by  the  deceased,  her  aunt,  a  woman  of  seventy-three.  No 
one  lived  with  them.  For  the  last  ten  days  of  her  life  the  deceased 
suffered  from  a  disease  which  prevented  her  from  moving  or  doing  any- 
thing to  procure  assistance;  during  this  time  the  prisoner  lived  hi  the 
house,  and  Uxik  in  tiie  food  supplied  by  the  tradesmen,  but  ap[)arently 
gave  none  of  it  to  the  decea.sed,  nor  did  she  ])r()('ure  for  her  any  medi- 
cal or  nursing  attendance,  or  inform  any  one  of  the  condition  of  the 
deceased,  although  she  had  abundant  opportunity  to  do  so.  No  one 
but  the  prisoner  had  any  knowledge  of  the  condition  of  the  deceased 
jprior  to  her  death,  which  was  substantially  a<!celerated  by  want  of 
food,  nursing,  and  medical  attendance.  Held,  that  a  duty  was  inij)osed 
u|K)n  the  jirisoner  under  the  circumstances  to  supply  the  th'ceased  with 
BufHcieiit  food  to  maintain  life,  and  that  the  death  of  the  deceased 
liaving  beijn  accelerated  by  the  neglect  of  such  duty,  the  prisoner  wjis 
properly  convicted  of  manslaughter.    'The  Qneenv,  histaii,  41(5. 

3.  On  a  prosecution  for  the  killino  of  a  person  while  present  at  a  fight 
between  J.  and  G.,  testimony  as  to  what  B.  said  to  J.  with  regard  to 
G.,  in  the  presence  of  deceased,  was  properly  excluded,  there  being  no 
pretense  that  the  deceased  said  anything  that  might  characterize  his 
Bubse<iuent  conduct.    State  v.  Herman  et  al.,  313. 

4.  Manslaughter  in  the  fourth  degree  being  the  intentional  killing  of 
a  human  being  in  the  heat  of  passion,  on  a  reasonable  provocation, 
without  malice  and  without  premeditation,  and  under  circumstances 
that  will  not  render  the  killing  justiliable,  or(Hev.  St.,  g  3470)  the  in- 
voluntary killing  of  another  by  a  wea|»n  or  by  means  neither  cruel 
nor  unusual,  in  the  heat  of  passion,  in  any  case  other  than  justihable 
homicide — where  two  persons  ran  together  U>  the  scene  of  a  tight,  and 
one  of  them,  shouting,  "  Shoot  them  down! "  threw  a  club  at  a  i)erson 
present,  which  knocked  him  down,  and  the  other  grabbed  him  as  he 
attempted  to  rise,  and  struck  him,  the  two  may  be  tniually  guilty, 
though  the  blow  which  caused  death  was  that  received  from  the  club 
fiiut  thrown.     Id. 

5.  The  exclusion  of  a  conversation  between  deceased  and  one  of  those 
engaged  in  the  fight,  occurring  prior  thereto,  can  not  be  treated  as  error 
in  the  absence  of  evidence  as  to  the  nature  of  the  conversation.     Jd. 

6.  Passion  aroused  by  mere  words  can  not  reduce  homicide  below  the 
crime  of  murder  in  the  second  degree.    Smith  v.  State,  320. 


-^.-.-.J 


T90 


AMERICAN  CRIMINAL  REPORTS. 


7.  As  AN  INDICTMENT  FOR  MunDRR  in  the  first  degree  includes  all  df^rcfs 
of  homicide,  the  court  properly  refused  to  charge  that  if  the  ItillinK 
was  done  in  the  heat  of  passion,  defendant  could  not  be  found  guilty 
•*  as  charged  in  the  indictment."    Id, 

8.  On  a  trial  for  murder,  a  request  to  charoe  that  If  the  killing  won 
done  when  defendant  was  "  in  great  paasion,  not  having  sutticicnt 
tune  for  his  blood  t(>  ^uv.1,  i!?en  he  is  not  }?uilty  of  murder  in  the  liist 
degree,"  was  properly  refuseu,  as  it  permits  no  inquiry  as  to  whether 
defendant  or  deceased  was  the  aggressor  in  the  altercation  which 
aroused  defendant's  passion.    Id. 

0.  Passion,  without  reasonable  cause,  will  not  be  taken  into  account 
in  determining  tlie  degree  of  murder.    Id. 

10.  A  MAN  assailed  ON  HIS  OWN  GROUNDS,  without  provocation,  by  a  per- 
son armed  with  a  deadly  weapon  and  apparently  seeking  liis  life,  is 
not  obliged  to  retreat,  but  may  stand  his  ground  and  defend  hinisflt' 
with  such  means  as  are  within  his  control,  and  so  long  as  there  is  no 
intent  on  his  part  to  kill  his  antagonist  and  no  purpose  of  doing  any- 
thing beyond  what  is  necessary  to  save  his  own  life,  is  not  guilty  of 
murder  or  manslaughter  if  death  results  to  his  antagoiust  from  a  blow 
given  him  under  such  circumstances.  Babe  Beard  v.  United  Stuten, 
324. 

11.  Homicide  committed  in  resisting  arrest.    Sobinsoii  v.  State,  570. 

18.  Self-defense. — Under  certain  circumstances  a  person  may  be  justified 
in  arming  himself  for  defense.     Thompson  v.  U.  S.,  209,     Note,  j).  U49. 

18.  Mutual  combat.— In  such  cases  both  parties  are  aggressors.  State  v. 
Spears,  632. 

14.  Insanity— lRRESiSTiBt.E  impulse.— Sto^e  v.  Harrison,  026. 

15.  Duty  to  retreat.— Belief  necessary  to  justify  taking  life  of  assailant. 
Note,  p.  387. 

16.  Self-defense.— Note,  p.  337. 


tt'      and  unquos- 

.    and  itncc't*- 

cuiiipiilsioii.    f 

wliat  it  deinauu.i. 


MISDEMEANOR. 

1.  Corporations  indictable  at  common  law.— It  is 
tionable  that  corporations  may  be  indicted  atco" 
sarily  follows  that  they  may  be  brought  into  < 
necessary,  for  the  law  is  never  powerless  to  en 
Com.  V.  Lehigh  Valley  R.  Co.,  370. 

2.  Common  LAW  -How  recoonized.— The  common  law  of  on*-  t  the  United 
States  includes  the  long  recognized  judicial  practice  oi  that  state, 
whether  it  was  ever  known  in  England  or  not.    Id. 

8.  Practice  suppues  lack  of  precedent.— A  judgment  by  default  against 
a  corporation  indicted  for  misdemeanor  may  be  rendered  on  its  failure 
to  appear,  by  virtue  of  the  common  law  of  Pennsylvania,  which  haa 
established  this  practice  in  civil  cases,  notwithstanding  the  lack  of  anv 
precedents  in  criminal  cases,  since  personal  appearance  of  the  defend- 
ant is  no  more  necessary  in  case  of  misdemeanor  than  in  a  civil  action. 
Id. 

MOTIVE. 

One  accused  op  stealing  may  show  that  a  witness  who  testifies  to  having 
bought  the  alleged  stolen  property  from  defendant,  was  himself  accust.'d 
of  the  same  onense,  as  furnishing  a  motive  to  testify  falsely.  State  v. 
Burpee,  536. 


INDEX. 
MUNICIPAL  CORPORATIONS. 


701 


State  LAW  AND  onDiN.\NCK.-Muiiirii.al  corporiitioiiH  nmy  pass  onlinMic..s 

..r  tliH  pm.mliMu.nt  of.  am    niay  i>iniisli  f.u-.  tl...  sumo  Act-  „s  luv  nun. 

iHhnhk^  urn  er  tlio  Poniil   Coilc,  wlicn  authi)ri/.."<l  ho  to  ilo  l.v  the  law 

under  whkli  auch  towna  and  villug.'s  aio  organized,    aiatc  v.  I'lmtun 

72)0.  ' 

MURDER. 

1.  Appfjxate  court  will  not  disturb  VKHDin-.— The  apiiollatp  ooiu-t  will 

not  disHirb  a  verdict  of  nnirder  in  the  first  degree,  wliere  motive  and 
opportunity  are  shown,  and  all  the  evidence,  tliougli  wlioljy  circum- 
Btantial,  points  so  surely  to  defendant  as  the  author  of  the  crime  as  to 
exclude  any  other  rational  conclusion.    Pcupk  v.  JuIiuhou,  'All. 

2.  EXPRKSHIONS  OF  MALICE,  FOLLOWED  BY  FRIENDLY  RKLATIONS-MOTIVE.— 

Though  defendant's  expressions  of  malice  toward  deceased  long  l)efi>ro 
the  nuirder  were  followed  by  friendly  relations,  continued  to  the  time 
of  defendant's  discharge  from  employment,  defendant's  belief  that  his 
discharge  was  occasioned  by  deceased,  and  his  want  of  work  and  money 
may  have  revived  his  malice:  and  such  malice,  and  the  temjitation  to 
roblwry,  would  constitute  adequate  motives  for  tiie  murder.    Id, 

8.  Identification  op  money  displayed  by  defesd.vnt— His  fin\ncivl 

EMBARRASSMENT  PRIOR  TO  MURDER,  ETC.—The  fact  that  money  dis- 
played  by  defendant  was  not  absolutely  identified  as  that  paid  "to  de- 
ceased on  the  day  of  his  murder,  does  not  weaken  the  facts,  that  just 
before  the  murder,  defendant  had  no  UKmey  and  no  means  of  obtain- 
ing any,  and  was  in  distressing  need,  and  that  immediately  after  he  had 
in  his  jMissession  almost  the  exact  amount  paid  to  deceased  and  in  the 
eanu' denominations  of  currency,  and  gave  a  false  explanation  of  where 
and  froni  whom  he  got  it.    Id. 

4.  Convinced  as  jurors  when  convinced  as  men— Improper  test.— It  is 
proper  to  refuse  a  charge  that  jurors  should  doubt  or  be  convinced  as 
jurors  when  they  would  doubt  or  be  convinced  as  men,  because  it 
eliminates  the  oath  and  responsibility  of  the  juror.    Id. 

6.  Corpus  delicti— Confession  of  accused.— The  court  must  decide  in  the 

first  instance  whether  the  evidence  of  t\w  conmn  delicti  \h  jtrima  facie 
BufH(;ient  to  permit  confessions  of  the  accused  to  go  to  the  jury,  and, 
when  the  evidence  of  the  corpus  delicti  has  been  admitted  l)y  the  court, 
the  jury  must  determine  its  sufficiency  to  establish  the  fact  for  which 
it  was  admitted,  as  any  other  fact  before  them.  Lambright  v.  State, 
883. 

8.  Venue— Death  in  another  county.— Tlie  law  of  Maryland  provides 
that,  "  if  any  person  be  feloniously  stricken  or  poisoned  in  one  county, 
and  die  of  the  same  stroke  or  poison  in  another  county,  within  one 
year  thereafter,  the  oflfender  shall  be  tried  in  the  court  within  whose 
juriscliction  such  county  lies  where  the  stroke  or  poison  was  given." 
where  the  blow  was  struck  in  Maryland,  and  death  ensued  in  Peimsyl- 
vania,  the  venue  in  an  indictment  for  murder  was  properly  laid  in  the 
county  where  the  blow  was  struck.    Stout  v.  Stale,  398. 

7.  Separation  of  jurors. — Where,  before  verdict,  a  sick  juror  had  been 

separated  from  his  fellow  jurors  during  a  recess  of  the  court,  and  it 
appeared  that  he  had  not  been  tampered  with,  a  motion  to  discharge 
the  jury  was  rightly  overruled.    lb. 

8.  Duress  of  third  person.— On  a  trial  for  murder,  after  defendant  tes- 

tified that  two  men  threatened  to  take  his  life  unless  he  killed  deceased, 
the  court  refused  to  instruct  the  jury  that  if  defendant  killed  deceased 
•'  under  threats  of  immediate  impending  peril  to  his  own  life,  such  as 
to  take  away  the  free  agency  of  defendant,  then  he  is  not  guilty." 


793 


AMERICAN  CRIMINAL  REPORTS. 


Held,  thnt  the  refusal  to  so  charge  was  propor,  because,  aside  from  tho 
coininon-lavv  rule  that  taking  tlie  life  of  an  innocent  pei-son  can  not 
be  justified  on  a  plea  of  compulsion,  the  charge  ignored  the  evidonce 
in  the  case  that  defendant,  after  being  informed  by  the  men  that  he 
must  kill  deceased,  went  with  them  some  distance  to  deceiised's  liouso 
without  seeking  to  escape,    xirp  v.  State,  517. 

9.  Intoxication  as  a  defense.— If  an  intoxicated  person  has  the  capacity 
to  form  an  intent  to  take  life,  and  conceives  and  executes  such  intent, 
it  is  no  ground  for  reducing  the  degree  of  his  crime  to  murder  in 
the  second  degree  th.it  lie  \v,n  induc^'d  to  conceive  it,  or  to  conceive 
it  more  suddenly,  by  reason  of  his  intoxication.     Warner  v.  State,  526. 

10.  Same.— When  ihe  statutory  intention  to  kill  existed,  and  the  killing  was 
unprovoked  by  any  cause  adetjuate  to  reduce  the  degree  of  the  crime  to 
manslaughter,  the  intoxii-ation  of  the  homicide  at  the  time  of  the  act 
can  not  atfect  the  degree  of  the  crime.    lb. 

11.  Reasonable  doubt.— When  the  court  had  charged  that,  if  there  was 
a  reasonable  doubt  of  the  existence  of  any  fact  essential  to  constitute 
murder  in  the  Hi-st  degree,  such  doubt  must  be  resolved  in  favor  of  the 
defendant,  it  wiis  not  error  to  refuse  a  reipiest  to  cliarge  that  it  there 
was  a  reasonable  doubt  whether  a  particular  fact,  i.  e.,  an  intent  to  kill, 
existed.because  of  another  particular  fact,  i.  e.,  intoxication,  the  jury 
could  not  return  a  verdict  in  the  first  degree.     lb. 

12.  Sentence. — The  reason  for  inquiring  of  the  prisoner  before  judgment, 
in  cajjital  cases,  if  he  has  anything  to  say  why  sentence  should  not  be 

f)ronounced,  has  disappeai'ed  since  prisoners  have  been  jjermittt'd  to 
lave  counsel.     lb. 

13.  Trespass— Felony— ]MiSDEMEANOR.—If  a  trespass  on  the  person  or 
property  of  another  amounts  to  a  felony,  the  killing  of  the  tn's])asser 
will  be  justifiable  if  necessary  in  order  to  prevent  it;  but  a  irtspass 
which  amounts  only  to  a  misdemeanor  will  not  justifj-  the  killing. 
Tliese  principles  explained  and  applied.     Crawford  v.  State,  58T. 

14.  It  is  questionable  wiiether  the  construction  placed  upon  section  4;W2 
of  the  code  in  Pound  v.  State,  43  Ga.  127,  by  Ixtchrane,  C.  J.,  anjmndo, 
is  correct  as  to  the  property  contemplated  being  only  such  as  is  at  or 
near  the  babitjition;  but,  whether  so  or  not,  the  section  has  no  appli- 
cation where  the  injury  intended  is  not  a  felony,  and  the  property  at- 
tacked or  invaded  is  so  inconsiderable  that  the  injury  threateniil  is  not 
serious,  but  slight,  such  as  severing  from  the  side  of  meat  a  small  part 
of  it.     lb. 

15.  Jurisdiction. — When  a  person  stands  in  one  state  and.  shooting  across 
the  state  boundary,  feloniously  kills  a  person  in  another  state.  Note,  p. 
400. 

16.  Res  gestae. — Not  competent  for  party  wounded  to  state  who  infiictetl 
it,  unless  part  of  rea  gestae.     Lambriijht  v.  State,  383. 

17.  Same. — Exclamations  uttered  contemporaneous  with  act.    Id, 

18.  Self-defense. — Under  certain  circumstances  a  person  may  be  justified 
in  preparing  to  defend  himself.     Thompson  v.  U.  S.,  209.    Note,  p.  649. 

19.  Mutual  combat. — In  such  cases  both  parties  are  aggressoi-s.  State  v. 
Speara,  622. 

20.  Separation  op  jury. — Irregularity  or  prejudice  must  be  shown  to  jus- 
tify setting  aside  verdict.     State  v.  Harrison,  626. 

21.  Insanity— Irresistible  impulse.— S<a<e  v.  Harrinon,  020. 


INDEX. 


793 


23.  Malice.— An  intentional   killing  doe'^*  not  iiocessarily  prove  malice. 
Note,  p.  383. 

23.  Resisting  auuE'^t.— Where  p.Tson  "  dcnufizi'd"  does  not  show  or  make 
known  his  authority.     Robiimcn  v.  State,  570,  5T8. 


ji.D  YOU  CONVICT  on  circumstantial  evidence  ?    Such  a  question  is 
roper  to  ask  venire  men.    Lumbriyht  v.  State,  38:$. 


24.  Wou 
impi 

25.  Newspaper  ACCOUNT  of  the  trial;  expressions  of  opinion.     Id. 

See  Manslaughteh,  6,  7,  8,  9  and  11. 

NEW  TRIAL. 

1  To  SET  ASIDE  A  VERDICT  bpcausc  of  an   opinion  entortnined  by  a  .iuror 
"     before  iie  was  sworn,  it  ought   to  ai.pear  that  such  ojimion   was  not 

merelv  unsubstantial  and  hypothetical,  but  sucli  as  would  have  e.Ncluded 
liim  frop.i  the  jury  had  it  been  known  before  he  wiw  sworn.  State  v. 
Harrison,  626. 

2  Verdict  not  sustained  by  evidence.— When  it  appears  to  the  court 
*     tiiat  the  testimony  is  not  suHicient  to  sustain  the  verdict  a  new  U'lal 

will  be  awarded.     Grant  v.  State,  746. 

NUISANCE. 

1  A  private  PCiRSON  can  not.  of  his  own  motion,  abate  a  strictly  private 

nuisance,  but  lie  mav  abate  a  public:  nuisance  if  its  existt'iic  is  a  s.mrco 
of  special  injury  to  him.  provided  he  can  do  so  without  a  breach  of  the 
peace.     State  v.  White,  TS. 

2  Profvne  swearing. -An  indictment  charging  profane  swearing  and 

Sg,  and  taking  name  of  q'Hlin^'»'^% ''^V  ^'^^,^'^l' ^'ll^^' i;.rAS 
the  coinmon  nuisance,"'  etc. ,  is  not  good  unless  it  sets  forth  the  facts 

and  circumstances.     Com.  v.  Linn,  412. 

3  S^ME  -It  is  the  publicity  of  the  offense,  and  the  place  in  which  it  is  com- 
■     niitted,  that  make  it  punishable  as  a  common  nuisance,     lb. 

A  Pi-micswEVRiNO-PUBUC  PLACES.-Public  swearing  is  a  nuisance  at 
commo™  but  to  be  indictable  it  must  be  in  a  public  place,  and 
ar  ■mnovance  to  the  public.  The  indictment  must  char-e  as  an 
e"se  tlTaml  an  indispensable  fact  that  the  profane  language  was  ut- 
terell  in  the  piesence  Ld  witliin  the  hearing  of  the  citi/.ens  pre-^ent. 
Com.  V.  Linn,  412. 

<i  INDICTMENT  -An  indictment  charged  that  defendants  '-did  on  t1<e  pub- 
bV  sireets  and  hildiwavs,  profanelycu.se  an.l  swear  and  take  the  name 

act  of  March  31,  1860.  Id. 

6.  Use  of  profan-^  oaths  which  become  an  annoyance  to  the  citizens  at 

large.     Note,  p.  416. 

7.  What  constivutes  a  public  nuisance?    Note,  p.  416. 

OFFICER. 
•     i.  „^  ^ffinor  fnr  receivinff  cxcessivc  foes,  must  allege 

''  ^t;li^tK^^^^cSeTtX'L"^^^         ---•-•  ^-""^ 

2.  IT  IS  extortion  for  a  justice  of  the  peace  to  demand  or  ask  for  his  fees 


794 


AMERICAN  CRIMINAL  REPORTS. 


from  the  prosecutor  for  the  issuing  of  his  warrant  on  a  complaint  wlien 
he  knows  such  fees  are  illegal.     Note,  p.  297. 

3.  One  holding  a  municipal  office,  taking  greater  fees  thai.  "3  prescribed 

by  ordinance  is  guilty  of  extortion.     Note,  p.  297. 

4.  The  incumbent  of  an  office  which  an  unconstitutional  statute  puriwrted 

to  create  can  not  be  guilty  of  extortion,  as  he  is  neither  a  de  jure  nor 
de  facto  officer.    Kirby  et  al.  v.  State,  297. 

5.  Rescue  of  property  from  an  officer.— Validity  of  process.    State  v, 

Cassidy,  563. 

6.  Persons  orally  deputized  by  sheiiff  to  assist  him  in  making  arrest; 

status  of.    Eobinsoii  v.  State,  570. 

PARDON. 

1.  Right  of  paroled  convict  to  have  a  hearing.— A  convict  who  has 

received  and  ac<?epted  a  conditional  pardon  can  not  be  arrested  and 
remanded  to  suffer  his  original  punishment  because  of  an  alleged  non- 
performnnce  of  the  condition,  upon  the  mere  order  of  the  govi-nior. 
He  is  entitled  to  a  hearing  before  the  court  in  which  he  was  convicted, 
or  some  superior  court  of  criminal  jurisdiction,  and  an  opix)rtunity  to 
show  that  lie  has  performed  the  condition  of  his  pardon,  or  that  he  has 
a  legal  excuse  for  not  having  done  so.    State  ex  rel.  v.  Wolfer,  487. 

2.  Court  may  take  verdict  of  a  jury.— On  such  hearing  the  court  may, 

in  its  discretion,  if  in  Joubt  as  to  the  facts,  take  the  verdict  of  a  jury, 
but  the  party  is  not  entitled  to  a  jury  trial  as  a  matter  of  right,  except 
upon  the  question  whether  he  is  the  same  person  who  was  convicted, 
if  he  pleads  that  he  is  not.   Id, 

3.  Reprieve  by  governor,  and  stay  of  execution  of  death  sentence  by 

supreme  court,  distinguished.     Note,  p.  503. 

4.  Power  to  pardon  discussed.— Note,  p.  492. 

I).  Conditional  pardon. — Conditions  permissible;  acceptance;  breach  of 
conditions;  enforcing  forfeiture.    Note,  p.  493. 


PERJURY. 

1.  What  statements  are  material.— All  false  statements  wilfully  and 

corru])tIy  made  by  a  witness,  as  to  matters  wliich  alfect  his  crt'ilit.  are 
material,  and  he  is  liable  to  be  convicted  of  perjury  in  respect  to  such 
statements.     T?ie  Queen  v.  Baker,  421. 

2.  Statement  which  affects  credibility  of  witness.— The  defendant 

had  been  charged  with  selling  beer  without  a  license,  and  hiid  falsely 
sworn  that  when  jireviously  charged  with  a  similar  olfensf  he  had  not 
authorized  a  plea  of  guilty  to  be  put  in,  and  that  such  jilea  had  been  put 
in  without  his  kno'.v  iedge  and  against  his  will.  Held,  that,  as  such 
statements  affect' d  the  defendant's  credit  as  a  witness,  they  were  ma- 
terial, and  he  was  rightly  convicted  cf  perjury.     Id. 

8.  Allegation  and  proof.— In  a  prosecution  for  having  committed  per- 
jury in  an  actio  a  against  a  railroad  comj)any  for  personal  injuries,  by 
falsely  swearinf;  that  he  was  the  first  to  reach  the  injured  boy  after  he 
fell  from  the  car,  evidence  that  defendant  testified  that  two  others 
\v  ere  the  first  to  reach  him  was  projierly  excluded,  as  the  accused  testi- 
fied he  was  the  first  who  reached  the  person  injured,  and  the  uffcrcd 
evidence  did  noi.  propose  to  prove  that  he  testified  as  charged  ui  the  in- 
dictment.   State  V.  llunt,  420. 


INDEX. 


795 


4.  Immaterial  fact  rendered  material  by  circumstances.— In  the  dam- 
age suit,  the  main  issue  was  whether  the  defendant's  brakeman  had 
driven  the  plaintiff  off  the  train  while  in  motion,  and  a  witness  testi- 
fied that  he  did.  Held,  that,  though  the  witness'  testimony  that  ht< 
helped  to  carry  the  plaintiff  away  after  he  fell  was  immaterial  on  the 
issue  of  the  brakeman's  misconduct,  yet.  as  connected  with  the  truth 
of  his  statement  as  to  the  brakeman's  misconduct,  and  as  to  whether  he 
was  present,  and  saw  the  whole  transaction,  such  evidence  might  be  so 
material  as  to  constitute  a  basis  for  a  charge  of  perjury,  since  a  cir- 
cumstantial account  of  wliat  took  place  might  have  led  the  jury  to 
give  more  credence  to  the  testimony  that  he  was  present,  and  saw  the 
alleged  misconduct.    Id. 

5.  Declarations  op  witness  in  support  of  his  evidence  inadmissible.— 
Though  a  witness  in  the  prosecution  for  perjury  testified  as  to  dec- 
larations made  by  defendant  out  of  court,  that  he  did  not  see  the  biake- 
man  knock  the  boy  from  the  train,  evidence  that  tlie  defendant  had 
made  declarations  out  of  court  consistent  with  his  alleged  false  testi- 
mony are  nor  competent,  as  one  can  not  give  his  own  declarations  in 
evidence.    Id. 

6.  Evidence.— A  conviction  for  perjury  may  be  had  on  circumstantial  evi- 
dence.    Note,  p.  436. 

7.  Instructions.— Duty  of  court  to  instruct  jury  as  to  what  would  show 
material  testimony.     Note,  p.  436. 

8.  Oath  taken  before  a  de  facto  clerk.    Note,  p.  424. 

9.  Testimony  given  under  duress.    Note,  p.  425. 
10.  No  defense  that  the  jury  before  whom  case  tried  were  not  legally 


sworn.    Note,  p.  425. 


POLYGAjMY. 


1  On  a  trial  for  polygamy,  a  letter,  purporting  to  be  written  and  signed 
bV  defendant,  and  identified  as  his  handwriting,  anil  a.ldresswl  to  his 
mother-in-law,  is  competent  against  him.     Com.  v.  Haijden,  408. 

2  The  testimony  of  persons  present  at  a  marriage,  including  the  con- 
tracting parties,  is  competent  to  prove  it.    Id. 

q  Thoi^gh  there  w  no  proof  of  his  ordination,  the  testimony  of  one  that 
hS  ^minister  of  the  gospe',  and  that  he  performed  a  marriage  cere- 
mony, is  admissible.    Id. 

4  AN  honest  and  reasonable  belief  in  the  death  of  a  former  wife  or 
husband  is  not  a  defense  to  a  prosecution  for  polygamy.    Id. 

5.  What  constitutes  polygamy.— Venue,  evidence.    Note,  p.  412. 

PRACTICE. 

1  Whfn  defendant  waives  a  preliminary  EXAMiN.\TiON,he  can  notaft^r- 
^'   war^fs'beXid  to  say.  by  plea  in  abatement,  that  he  shou  d  be  dis- 

cliarged  because  he  had  no  such  examination.    State  v.  Myers,  lOS. 

2  Errors  of  law  to  be  available  in  a  court  of  review  to  the  complaining 
pa?S  must  be  raised  in  the  trial  court  and  specifically  assigned.  Clai  h 
V.  State  ex  rel.  Carey,  117. 

maS^MdiiK  denying  a  writ  of  /«.i«.™  c»rp«.,  the  takmg  ol  ,uch 


706 


AMERICAN  CRIMINAL  REPORTS. 


an  appeal  does  not  act  as  a  superscileas  so  as  to  prevent,  until  the  detor- 
mination  of  the  appeal,  the  execution  of  the  deatli  sentence  imposed  by 
a  state  court  on  tlie  appellant.    In  re  Buchanan,  494. 

4.  Control  of  court  over  verdict— Form  of— How  received.— Practice 

at  common  law,     Orant  v.  State,  746. 

5.  Where  the  evidence  excepted  to  is  not  incorporated  into  the  record, 

its  admission  can  not  be  reviewed.    State  v.  Morrow,  28. 

6.  Record  must  show  presence  of  accused.— Wliere  the  minutes  of  tlie 

clerk  or  the  record  does  not  show  that  the  accused  wius  i)resi'iit  wlifu 
the  verdict  was  rendered  and  sentenced,  a  conviction  of  murder  will 
be  set  aside.     French  v.  State,  348. 

7.  Corporation— Mode  of  bringing  it  into  court— Enforcing  judg- 

ment against  it.— A  corporation  is  indictable  at  comuion  law.  Cum, 
V.  Lehigh  Valley  R.  Co.  370. 

8.  The  refusal  of  the  court  to  certify,  on  the  stenoRr-njiher's  tran- 

scrijjt  of  certain  oral  instructions,  that  tliey  wei'e  ^iven,  so  as  to  make 
them  a  part  of  the  record,  is  not  ground  for  reversal,  wliere  such  in- 
structions are  made  a  part  of  the  I'ecord  by  bill  of  exceptions.  People 
V.  Clark,  596. 

9.  Nolle  prosequi  as  to  one  count  leaves  indictment  ijs  though  no  such 

count  had  been  inserted  therein.    Dealij  v.  U.  S.,  161. 

10.  Escape  of  convict. — An  escaped  convict,  who  is  convicted  and  sen- 
tenced to  the  penitentiary  for  another  crime,  may,  at  tlie  expiration  of 
the  latter  sentence,  be  held  to  serve  out  the  remainder  of  his  first  sen- 
tence.   Henderson  v.  James,  711. 

PROSECUTING  ATTORNEY. 

Misconduct. — Where  the  prosecuting  attorney  says  to  the  jurj',  "  The 
enticing  and  taking  of  tlie  prosecuting  witness  is  not  denied  l)y  tlie  de- 
fendant," and  the  court  sustains  an  objection  to  tlie  remark,  and  says, 
in  the  presence  of  the  jury,  that  defendant,  by  his  plea  of  not  guilty, 
denied  everything,  the  remark  does  not  constitute  revei-sible  error. 
Bradshaw  v.  People,  23. 

RAPE, 

1.  Boy  under  fourteen  years. — At  common  law  a  boy  under  fourteen 

yeare  is  presumed  to  be  pliysicallj-  incapable  of  committing  the  crime 
of  rape,  and  hence  it  is  incumbent  uiMtii  the  state,  in  order  to  warrant 
a  conviction,  to  prove  his  capacity.     Gordon  v.  State,  444. 

2.  Res  gestae— Principle  of — Extended  in  cases  of  abuse  of  children. 

— In  criminal  Ciuses,  and  especially  in  cases  of  rape,  and  in  cases  of 
abuse  of  female  children,  the  principle  of  what  is  called  the  res  (jcstae 
will  of  necessity  be  extended  beyond  the  limits  that  obtain  generally  in 
civil  cases.     Snowden  v.  U.  S.,  449. 

3.  Same.— In  a  prosecution  of  a  defendant  for  the  rape  of  a  child  about  five 

years  and  a  half  old,  the  statements  of  the  child,  of  the  particulars  of  the 
outrage,  made  to  her  granduiother  at  a  time' during  the  same  day,  when 
the  condition  of  the  child  showed  that  the  outrage  had  been  recently 
committed,  and  testified  to  by  the  grandmother,  are  admissible  as  part 
of  the  res  gestae.    Id. 

4.  Discussion  of  the  offense.— Evidence  necessary  to  convict,  etc.    Note, 

pp.  446-447. 

5.  Husband  may  be  guilty  of  rape  as  accessory.    Note,  p.  448. 

6.  Character  of  prcsecutrix  fob  chastity,  343. 


INDEX. 


797 


RECEIVING  STOLEN  GOODS. 

1,  Intent — Concealing  goods  stoi,en.— One  who  obtains  possession  of  the 

watch  of  another,  knowiii}^  it  to  be  stolen,  and  conceals  his  jiossession 
with  the  intention  of  requiring  the  other  t«>  nay  a  reward  for  restora- 
tion, may  be  convicted  under  a  statute  i)rovi(lin<:  a  penalty  for  receiv- 
ing stolen  goods,  knowing  them  to  be  stolen,  with  intent  to  deprive  the 
owner  thereof.    Baker  v.  State,  435. 

2.  Proof  of  venue. — The  venue  of  an  indictment  laid  in  P.  county  for 

receiving  a  watch,  knowing  it  to  be  stolen,  is  sulflcienily  proven  by  evi- 
dence tliat  accused  obtained  iwssession  of  the  watcii  in  M.  county,  came 
to  P.  county  with  it,  and  there  exacted  a  reward  from  the  owner  for 
its  restoration.     Id. 

3  Instruction. — The  language  of  an  instruction  with  reference   to  the 

value  of  goods  received,  the  prisoner  being  on  trial  for  the  alleged  crime 
of  receiving  stolen  goods,  examined,  and  held  not  erroneous  or  objec- 
tionable.   Benieker  v.  State,  400. 

4  Evidence— Sufficiency  of.— It  is  necessary,  in  a  prosecution  for  receiv- 

ing stolen  property,  to  i)rove  that  defendant  knew  it  was  stolen,  but 
such  knowledge  need  not  be  personal  or  actual.    Note,  p.  467. 

REPRIEVE. 

1    Execution  of  sentence.— Where  a  reprieve  is  granted  in  a  capital  case 
*     to  a  da v  certain,  the  warden  should  execute  tlie  sentence  on  the  diiy 
the  reprieve  ejtpires,  and  the  time  of  execution  need  not  be  agam  fixed 
by  court.    In  re  Buehanun,  494. 

2.  Reprieve  by  governor,  and  stay  of  death  sentence  by  Supreme  Court 
distinguished.     Note,  p.  502. 
See  Practice,  3. 

RESISTING  AN  OFFICER. 

1  T?rsrrF  OF  PROPERTY— Process. -On  trial  of  person  accused  of  unlaw- 
fnliv  t'lkin"  oronerty  from  an  officer,  it  is  sufficient  to  show  that  the 
nrocess  under  wliicli  the  officer  claimed  to  hold  the^property  was  regu- 
lar on  its  face.    State  v.  CasHuhj,  503.    Note,  p.  o<«. 

2.  Levy.— Sufficiency  of  levy  of  an  execution  on  property,  such  as  grr:..  in 
granary.    lb. 

H  ARREST-MuRDER-JusTiFlCATioN.~The  legal  status  of  persons  orally 
ckSed  by  the  sheritT  to  assist  him  in  making  an  arrest  when  acting 
umler^iis  orders,  is  that  of  a  ponm  comitatus.  Eobuison  v.  State, 
5T0.    Note,  p.  57«. 

REWARD, 

1    Sfction  296  OF  THE  Criminal  Code,  Nebraska,  authorizing  counties 

to  Ser  rewards  for  the  detection  or  apprehension  of  persons  charged 

•i  .  f  fy.tnnv  does  not  authorize  the  pavnient  of  such  reward  until 

""''*   -SWsSitTon  applies  as  well  to  an  offer  made  simply  for 

rapSienIiL"%Ta';Son^^^  f-  ^^t-*'-  -^  "^'P''*^- 

hension.    Andermti  v.  Pierce  County,  578. 


2. 


hension 
When  payable. -Plea  of  guilt  by  defendant,  etc. 

RIOT. 


Note,  pp.  581,  583, 


.     .  ^»™.^«n.  r.»  ivformation  for  RIOT  must  show  for  what  puniose 

''  ^S^SeTSemblXSmuS  c'ourt  may  judge  whether  it  wa.  law- 


798  AMERICAN  CRIMINAL  REPORTS. 

ful  or  not,  and  it  must  state  that  the  defendants  unlawfuUv  assem- 
bled. It  must  likewise  state  the  illegal  act  which  was  the  object  of  tho 
meeting;  for  a  riot  is  a  compound  offense;  there  must  not  onlv  be  an 
unlawful  act  to  be  done,  but  an  unlawful  assembly  of  more  than  two 
persons.    Blackwell  v.  State,  583. 

2.  What  constitutes  eiot.— Note,  p.  586. 

ROBBERY. 

1.  Indictment.— In  an  indictment  for  robbery,  a  description  of  the  prop- 
erty taken,  an  "  certain  money  and  one  silver  watch  and  watch  chain,  of 
the  goods  and  chattels  of  said  J.  N.  E.,"  is  suthcient,  without  further 
allegation  of  value.    State  v.  Perley,  504. 

2.  Value  immaterial. — The  rule  that  indictments  for  larceny  must  allege 
the  value  of  the  articles  stolen,  is  still  maintained,  because  the  punish- 
ment for  larceny  is  gradtiated  by  our  statutes  with  reference  to  the 
value  of  the  property  taken.    lb. 

3.  Same.— In  robbery,  as  defined  by  the  common  law,  the  value  of  the  prop 
erty  taken  has  never  been  deemed  of  the  essence  of  the  crime.    1  b. 

4.  Claim  of  right— Good  faith  of.— To  constitute  robbery  there  must 
be  force  or  intimidation,  asportation  without  the  consent  of  tlie  owner, 
and  the  intent  to  steal.  A  person  taking  property  from  another  under 
a  bona  fide  claim  of  right,  and  with  the  purpose  of  applying  it  to  the 
payment  of  a  debt  from  the  latter  to  himself,  is  not  guilty  of  robbery. 
In  such  case  the  animus  furandi  is  lacking.  It  is  otherwise  if  the  claim 
of  right  is  a  mere  pretense.    Crawford  v.  State,  587. 

6.  Possession. — To  constitute  robbery  it  is  unnecessary  that  the  taking  of 
the  property  should  be  directly  from  one's  person;  it  is  b^fficient  if  it  is 
taken  while  in  his  possession  and  immediate  presence.    Jb. 

6.  Evidence— Conversation. — Where  the  prosecuting  witness  at  the  time 
of  the  robbery  identified  defendant  as  a  person  with  whom  he  liad  had 
a  convercatioh  in  the  presence  of  a  third  person  the  sutetance  of  the 
converaation  is  admissible  to  enable  such  tliird  person  to  identify  de- 
fendant fis  the  person  with  whom  the  conversation  was  had.  People  v. 
Chirk,  59». 

7.  Same. — Where,  in  such  a  case,  the  prosecuting  witness  positively  iden- 
tified defendant  as  one  of  the  active  participants  in  the  robbery,  the 
fact  that  the  witness  was  allowed  to  state  the  defendant's  naiiie,  as 
given  liim  subsequently  by  the  person  in  whose  presence  the  conversa- 
tion was  had,  is  not  ground  for  reversal.    lb, 

8.  Same.— The  state  may  show  why  a  person  who  was  present  at  a  robbery 
had  gone  away,  as  otherwise  he  should  have  been  called  as  a  witness.    Jb, 

9.  Same. — When  defendant,  in  accounting,  as  a  witness,  for  his  time  on 
the  night  of  the  robbery,  stated  that  he  went  to  a  certain  part  of  the 
town,  he  could  be  properly  cross-examined  as  to  what  he  and  his  com- 
panion were  doing  there.    lb. 

10.  Same.— On  a  prosecution  for  robbery,  the  fact  that  the  property  alleged 
to  have  been  stolen  did  not  in  its  entirety  belong  to  the  person  named 
in  the  indictment  as  owner,  is  not  such  a  variance  as  to  prevent  a  con- 
viction,   lb. 

11.  Indictment  for  highway  robbery— Joinder  therein  of  lesser  offense. 
•*  Feloniously  did  take  and  carry  away,"  and  "did  make  an  assault," 
etc.    State  v.  Brown,  810. 


., , 


INDEX. 


799 


12.  What  constitutes  robbery.— Ownership  of  property,  evidenoe.  Dis- 
tinction between  robbery  and  larceny  from  the  perBori.     Note,  p.  313. 

13.  What  constitutes;  evidence;  indictment.    Note,  pp.  003-606. 

14.  Violence.— Not  necessary  that  violence  should  precede  the  takine. 
Note,  p.  510.  * 

15.  Possession.— Nice  questions  arise  as  to  when  the  possession  of  prop 
erty  not  attached  to  the  person  is  divested.    Note,  p.  510. 

16.  Evidence.— Pleading,  etc.    Note,  p.  511. 

SEDUCTION. 

1.  An  indictment  for  seduction  under  promise  of  marriage,  alleging  that 
the  defendant  had  carnal  knowledge  of  the  woman  "by  virtue  of  a 
false  or  feigned  promise  of  marriage,"  and  not  alleging  that  the  prom- 
ise was  made  to  her,  is  sufficient  after  verdict.    Norton  v.  State,  606. 

2.  On  a  prosecution  for  seduction  under  promise  of  marriage,  the  chas- 
tity of  the  woman  at  the  time  of  the  intercourse  is  essent  al.    lb. 

3.  An  indictment  for  seduction  under  promise  of  marriage  need  not  allege 
that  the  man  was  unmarried,  although,  if  married,  and  the  woman 
knew  it,  no  conviction  could  be  had.    lb. 

4.  It  is  not  absolutely  essential  that  an  indictment  for  seduction  under 
promise  of  marriage  should  aver  that  the  woman  was  single.    lb. 

5.  Character— Facts,  not  conclusions.— A  question  asked  a  witness  on  a 
prosecution  for  seduction,  as  to  whether,  from  facts  within  his  own 
knowledge,  the  prosecutrix  resided  at  a  bawdy  house,  was  properly 
excluded  as  being  too  general  and  calling  for  a  conclusion.  Baker  v. 
Com.,  614. 

6.  Compromise.— No  compromise  between  the  parties  bars  a  criminal 
prosecution  for  a  seduction  imder  promise  of  marriage.    lb. 

7.  Instruction.— It  was  proper  to  charge  that  if  the  jury  believed  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  prosecutrix  was  an 
unmarried  female,  of  previous  chaste  character,  at  the  time  of  her 
alleged  seduction,  and  she  was  seduced  by  the  prisoner  under  promise 
of  marriage,  they  should  find  him  guilty.    lb. 

8.  Same— Presumption  of  innocence.— An  instruction  that  the  prisoner 
comes  to  trial  presumed  to  be  innocent,  and  this  presumption  extends 
to  the  end  of  tlie  trial,  and  the  jury  should  endeavor  to  reconcile  all 
the  evidence  with  this  presumption,  was  properly  refused  as  mislead- 
ing,   lb. 

9.  Chastity  presumed.— The  female  is  presumed  to  be  chaste,  and  it  lies 
on  the  prisoner  to  prove  the  contrary.    lb. 

10.  Burden  of  proof. — Under  the  rule  as  established  in  Minnesota,  in  a 
prosecution  for  seduction  under  a  promise  of  marriage,  the  burden  of 
proof  rests  upon  the  state  to  prove  the  previous  chaste  character  of 
the  prosecutrix,  and  her  testimony  must  be  corroborated  by  other  evi- 
dence on  the  subject.    State  v.  Lockerby,  617. 

11.  Same— Circumstantial. — But  such  eviilence  may  be  received  as  in  the 
nature  of  the  case  reasonably  tends  to  establish  the  fact,  and  where 
there  is  some  evidence,  though  circumstantial,  tending  to  support  the 
testimony  of  the  prosecutrix,  the  case  is  for  the  jury.    lb. 

12.  Same. — In  view  of  the  rule  as  to  the  burden  of  proof  on  this  question, 


800 


AMERICAN  CRIMINAL  REPORTS. 


evidonco  of  her  general  reputation  for  chastity  is  admissible  in  corrob- 
oration,   lb. 

18.  What  constitutes  seduction.    Note,  p.  621. 

J  4.  Seduction  or  rape.    Id. 

15.  Corroborate  evidence.    Note,  p.  622. 

SELF-DEFENSE. 

1.  When  dependants  brinj?  on  the  difficulty  themselves,  they  can  not 
plead  self-defense.    State  v.  White,  73. 

2.  One  wronofully  assailed  in  a  public  place  is  not  obliged  to  retreat 
from  his  assailant  in  order  to  avoid  a  conflict.     Id, 

8.  Armino  one's  self  for  defense. — (1)  A  person  who  has  an  angry  alter- 
cation with  another  person,  such  as  to  lead  hiui  to  believe  that  he  may 
retjuire  the  means  of  self-defense  in  case  of  another  encounter,  may  be 
justified  in  the  eye  of  the  law  in  arming  himself  for  self-defense;  and 
if.  on  meeting  his  adversary  on  a  subsequent  occasion,  lie  kills  liim,  but 
not  in  necessary  self-defense,  his  crime  may  be  that  of  manslaughter  or 
murder,  as  the  circumstances  on  the  occasion  of  the  killing  make  it  the 
one  or  the  other.  (2)  If,  looking  alone  at  tliose  circumstances,  his  crime 
be  tliat  of  manslaughter,  it  is  not  converted  into  murder  by  reason  of 
liis  having  previously  armed  himself.     Thompmn  v.  United  States,  209. 

4.  Mutual  combat— Both  aggressors. — If  a  party  kills  another  from  fear 
of  death  or  great  bodily  harm,  lie  must  be  free  from  fault  in  bringing 
on  the  diflieulty,  in  order  to  justify  the  homicide.  In  cases  of  mutual 
combat,  both  parties  are  the  aggressors,  and,  if  one  is  killed,  it  will  be 
manslaughti'r  at  least,  unless  the  survivor  can  prove  that  before  the 
mortal  stroke  was  given  he  had  refused  any  further  combat,  and  re- 
treated as  far  as  he  could  with  safety,  and  that  he  killtnl  his  adversaiy 
from  necessity,  ta  avoid  his  owa  destruction,  or  greater  bjJily  harm  to 
him.    State  v.  Spears,  622. 

8.  SELF-DEFENSE—DKFiiNSE  OF  OTHERS— Subjects  discussed.    Note,  p.  649. 

SENTENCE. 

1.  Cumulative  SENTENCE— Other  crime— Escapedconvict.— An  escaped 
convict  sentenced  for  the  commission  of  another  crime  may,  at  the  ex- 
piration of  the  imprisonment  for  the  latter  sentence,  be  held  to  serve 
out  the  former.    Henderson  v.  James,  711. 

3.  Term  op  imprisonment  fob  non-payment  op  pine.    Note,  p.  718. 

8.  Sentence  of  death — Escape.  — A  person  under  death  sentence  who  es- 
capes until  after  the  time  fixed  for  his  execution,  may  be  executed 
when  captured.     Note,  p.  719. 

4.  Convict  committed  to  insane  asylum,  can  not  be  committed  to 
prison  after  expiration  of  term.     Note,  p.  719. 

5.  Several  counts— Sentence  in  each.  —Where  a  person  has  been  con- 
victed at  the  same  term  of  court  of  several  distinct  offenses,  each  pun- 
ishable by  imprisonment  in  the  iienitentiary,  whether  charged  in 
separate  informations  or  in  separate  counts  of  the  same  information,  the 
court  may  imjiose  a  separate  sentence  for  each  offense  of  which  the 
prisoner  has  been  found  guilty.    Lire  Walsh,  651. 

6.  Same— One  sentence.— If  the  same  offense  is  charged  in  different 
counts  of  an  information,  and  there  is  a  convicrtion  on  each  count, 
but  a  single  sentence  should  be  pronounced  upon  all  the  counts  for  the 
one  entire  offense.    lb. 


INDEX. 


801 


'•I 


7.  Court  has  no  power  to  suspend  sentence,  except  ns  an  inrident  to  a 
writ  of  error  or  on  some  other  lui^nl  ground .     In  re  Webb,  703. 

8.  Power  of  court  to  suspend.— Pen.  Code,  section  12,  N.  Y.,  dccliirinf; 
tliat  the  sections  of  the  Code  wiiich  make  certain  crimes  lumishalilc 
devolve  a  duty  on  the  court  to  impose  the  punishment  prescribed,  did 
not  abrogate  the  cojiimon-lawriRht  of  criminal  courta  to  suspend  sen- 
tence,   teople  ex  rel.  v.  Court  of  Sessions,  489. 

9.  Same.— Laws  189.3,  c.  279,  permitting  the  criminal  courts  to  suspend 
sentence  during  good  behavior  of  the  convict,  where  the  maximum 
term  prescribed  does  not  exceed  ten  years,  and  the  convict  has  never 
before  been  convicted  of  a  felony,  does  not  conflict  with  Const.,  art.  4, 
section  5,  vesting  in  the  governor  the  exclusive  jHiwer  to  grant 
reprieves  and  pardons.     Id. 

10.  Reprieve  by  governor,  and  stay  of  death  sentence  by  supreme 
court  distinguished.    In  re  Buchanan.     Note,  p.  502. 

11.  Interrooatino  convict.— Why  sentence  should  not  be  pronounced,  not 
essential.     Warner  v.  State,  520. 

SLANDER. 

On  a  prosecution  for  slander,  where  the  language  used  by  defendant 
is  a  slang  term  and  ambiguous,  testimony  explaining  what  the  witness 
underetood  by  it,  is  admissible.    Dickson  v.  State,  056. 


649. 


SOLICITING  COMMISSION  OF  CRBIE. 

Adultery— Attempt  to  commit.— Solicitation  to  commit  adultery  is  not 
an  attempt  to  commit  the  crime.    State  v.  Butler,  GOl. 

SWINDLING. 

1.  Representations  by  a  party  applying  for  credit,  that  he  was  per- 
fectly solvent,  and  responsible  for  his  debts,  and  was  good  for  his  obli- 
gations, are  representations  of  his  respectability  and  wealth,  and,  if 
false,  are  within  the  statute,  which  declares  that  "  if  any  person,  by 
false  representation  of  his  own  respectability,  wealth  or  mercantile 
correspondence  and  connections,  shall  obtain  a  credit,  and  thereby  de- 
fraud any  person  or  persons  of  any  money,  goods,  chattels  or  other  valu- 
able thing  *  *  *  such  person  so  offending  shall  be  deemed  a 
cheat  and  swindler."    Hathcock  v.  State,  705. 

2.  Where  goods  are  obtained  by  false  representations  connected 
with  true  ones,  if  the  false  are  separable  from  the  true,  and  are  mate- 
rial, and  had  a  material  influence  in  eif ecting  the  fraud,  they  alone  may 
be  alleged  in  the  indictment  or  accusation,  and  the  conviction  will  be 
upheld  although  other  representations,  not  false,  constituted  a  material 
part  of  the  inducement  on  which  the  prosecutor  gave  the  credit  and 
parted  with  his  goods.    Ih. 

3.  That  the  accused  had  unlimited  credit  with  another  house  was  not 
relevant  upon  the  question  of  whether  he  had  misrepresented  his  solv- 
ency to  the  prosecutor,  and  thereby  defrauded  him.    lb. 

4.  Promissory  notes  of  the  accused,  executed  after  the  misrepresenta- 
tion complained  of,  in  renewal  of  debts  existing  before,  were  admis- 
sible in  evidence  to  show  the  amount  of  his  liabilities  at  the  time  he 
represented  himself  as  solvent.    lb, 

51 


802 


AMERICAN  CRIMINAL  REPORTS. 


6.  Cheatino  and  swindi-ino  may  be  committed  by  false  reproHontntlon 
of  a  jMiHt  fact.  t)iout!;h  a  promise  be  also  a  part  of  the  inducouient. 
Thuiiiua  V.  State,  lUti. 

SUNDAY. 

1.  Under  the  laws  of  Nebbaska.— Any  person  of  fourteen  years  of 
a);e  or  upward,  who  shall,  on  Sunday,  engaKe  in  sporting,  etc.,  shall 
be  fined  in  a  sum  not  exceeding  i|(20,  or  be  confined  in  the  county  jail 
not  exceeding  twenty  days,  or  both.    State  v,  O'Rourk,  689. 

8.  Playing  baseball  on  Sunday,  comes  within  the  definition  of  "  sport- 
ing," and  renders  the  persons  engaging  tlierein  liable  to  the  punish- 
ment provided  for  in  section  241.    Id. 

8.  Innocent  amusements  are  not  under  the  ban  of  outlawry.  Note, 
p.  700. 

THEFT. 

Bank  paying  by  mistake  more  money  than  a  check  calls  for  is  not  larceny 
in  the  receiver.    Fulclier  v.  State,  734. 

TIME  AND  PLACE. 

1.  Time  and  place  are  a  material  inquiry  in  all  criminal  trials,  whether 
or  not  an  alibi  is  set  up.     Thompson  et  al.  v.  State,  199. 

2.  The  state  must  pkove  that  the  offense  took  place  within  the  time 
charged  in  the  indictment,  but  is  not  bound  by  the  date  given  by  the  wit- 
ness for  the  state.    Id, 

VAGRANCY. 

Indictment.— Under  the  statutes  of  Idaho  an  information  for  vagrancy 
which  alleges  "that  the  defendant  on  theOth  day  of  May,  1894,  and  for 
three  weeks  prior  thereto,  at  Pocatello,  in  the  county  of  Bannock  and 
state  of  Idaho,  unlawfully  roamed  and  unlawfully  has  roamed  alx)Ut 
from  place  to  nlace  without  any  lawful  business,  wilfully  and  unlaw- 
fully was,  has  been  and  continues  to  be,  and  still  is,  an  idle  and  disso- 
lute person,  who  wanders  and  roams  about  the  streets  of  said  city  at  late 
and  unusual  hours  of  the  night,  has  continued  to  be,  and  still  is,  an  idle 
and  dissolute  person,  who  lives  and  has  lived  in  and  about  houses  of 
ill  fame  there  situated,"  is  sufificient.    State  v,  Preston,  7«{5. 

VENUE. 


1.  Murder — Death  in  another  county. — Statute  of  Maryland  provides 
that  "  if  any  person  be  feloniously  stricken  or  poisoned  in  one  county, 
and  die  of  the  same  stroke  or  poison  in  another,  the  offender  shall  he 
tried  in  the  court  within  whose  jurisdiction  such  county  lies  where  the 
blow  was  struck  or  poison  given.  When  the  blow  was  "struck  in  Mary- 
land and  death  ensued  in  Pennsylvania,  the  venue  in  the  indictment 
was  properly  laid  in  Maryland.    Stout  v.  State,  398. 

2.  Jurisdiction.— Where  a  person  stands  in  one  state  and  shoots  across  its 
boundary  and  feloniously  kills  a  person  in  another  state.    Note,  p.  406. 

8.  False  pretenses  and  beceivinq  stolen  goods.— Venue  of  such  of- 
fenses.   Note,  p.  408.    Baker  v.  State,  455. 


INDEX. 


803 


4.  FoROERY— Uttering— Venue  of  the  offexse.— 51ailin;,'f(ir«.'i|  instni- 
iiu'nt  in  one  county  and  rect'ipttlM'ivof  in  anotlior  iIol-h  not  tonstituUs 
un  uttering  in  the  first  county.     Slate  v.  Hiul.ioii,7i2, 


6.  Crime  committed  tlirougli  agency  of  i)o.stal  or  carrier  aervico. 
745. 

VERDICT. 


Note,  p. 


1.  A  verdict  OP  GUILTY  or  not  guilty  as  to  the  cliargo  in  ono  count  of  an 
indictment  ia  not  rtisponaive  to  tlie  charge  in  any  otlier  count.  Ikalii 
V.U.S.,1QI. 

2.  A  VERDICT  OP  GUILTY,  entereii  upon  all  tlio  counts  of  an  indictment, 
sliould  stand  if  any  one  of  tlietn  is  good.    Ecuuh  v.  U.  S.,  (ills. 

8.  Trial  on  two  or  more  counts.~A  person  tried  on  two  or  more  counts 
in  an  hidictinent,  a  verdict  of  guilty  in  one  count  operates  as  an  ac- 
(piittal  in  the  other.  Sucli  ac(]uittal  does  not  vitiate  the  vt-rdict  of  guilty 
on  tlie  other,  althougli  botli  counts  nuiy  relate  to  the  same  transaction. 
Hatheock  v.  State,  705 . 

4.  Form  of  verdict. — The  following  verdict  was  sufficient  to  sustain  tlie 
judgment,  to  wit:  "  We.  the  jury  in  the  above  entitled  cause,  lind  the 
defendant  guilty  of  being  a  vagrant  at  the  time  charged  in  the  com- 
plaint."   State  V.  Preston,  735. 

5.  The  form  of  said  verdict  did  not  prejudice  or  tend  to  prejii<lice  the 

defendant  in  any  substantial  right,  hence  should  not  be  held  invalid 
because  of  any  surplusage  it  contains.     Id. 

6.  Before  a  verdict  returned  by  a  jury,  in  cases  of  felony,  is  complete, 
it  must  be  accented  by  the  court  for  record.  At  any  time  afti-r  the  ver- 
dict ia  returned  into  court,  and  before  it  is  accepted  by  the  court  for 
record,  the  accused  has  the  right  to  have  the  jury  iK)Hed.  in  order  to 
ascertain  if  the  verdict  offered  is  unanimous,  and.  in  the  absence  of  a 
palling  of  the  jury,  any  member  thereof  has  the  right,  mm  .sjtonte,  to 
recede  from  the  verdict  agreed  upon  at  any  time  before  it  ia  accepted 
for  record.    Ovant  v.  State,  740. 

7.  At  common  law  the  verdict  of  the  jury  in  cases  of  felony  was 
pronounced  in  open  court,  then  entered  on  the  record  by  the  clerk,  and 
after  this  affirmed  by  the  entire  jury,  when  it  became  complete.  The 
manner  of  receiving  and  affirming  verdicts  in  cases  of  felony  discussed. 
When  a  jury  returns  into  court  an  informal,  insensible,  or  a  repugnant 
verdict,  or  one  that  is  not  responsive  to  the  issues  submitted,  they  may 
be  directed  by  the  court  to  reconsider  it,  and  present  a  verdict  in  proper 
form.  The  court  should,  however,  use  great  caution,  and  not  intimate 
to  the  jury  the  kind  of  verdict,  in  substance,  that  should  be  returned. 
Id. 

8.  After  the  case  had  been  submitted  to  the  jury  under  the  charge 
of  the  court,  they  returned  into  court  the  following  verdict,  viz.:  "  We, 
the  jury,  find  the  defendant  guilty  of  manslaughter  in  the  fii-st  degree." 
The  court  refused  to  accept  this  verdict,  and  stated  to  the  jury  that  it 
was  not  in  proper  form,  as  there  were  no  degrees  in  manslaughter,  and 
that  they  must  retire  and  present  a  verdict  in  proper  form.  The  jury 
retired,  and  returned  the  following  verdict,  viz.:  "We,  the  jury,  find 
the  defendant  guilty  of  murder  in  the  first  degree,  and  recommend 
him  to  the  mercy  of  the  court."  and  this  verdict  was  accepted  by  the 
court.  Held,  that  the  court  did  not  err  in  refusing  to  recei\  e  the  first 
verdict,  and  in  accepting  the  second.    Id. 


S04 


AJIEUICAN  CRIMINAL  REPOUTS. 


r  I 


0.  Veudict  induced  by  promise  of  clemency  by  court.    Note,  p.  753. 
10.  Settinu  aside.    Note,  p.  754. 

WITNESS. 

1.  CRiMiNATiNa  EVIDENCE— Oamblino.— The  provision  of  Const.,  nrt.  2, 
t^2i\,  tliat  "nopei-Hon  tiliall  be  conipellwl  to  testify  uKninst  liiiiiHelf  in  a 
c-riiiiinal  enuse,"  does  not  exempt  a  witness  from  tliselosinK  tlie  names 
of  others  tlian  himself  wlui  liave  enwuKed  in  Kamin^.  since  immunity 
is  all'orded  iiim  by  Rev.  St.,  1889,  }^  881»,  which  i)r()vidosthat  no  persoii 
shall  be  excused  from  testifyiuR  touching  any  olfense  conunitted  by 
another  aftainst  the>,'aminK  act  bv  reason  of  his  having  played  at  any 
of  the  prohibited  frames,  "but  the  testimony  wliiclimay  be  given  by 
sudi  person,  ahali  in  no  case  be  used  against  him."  Ejc  purte  Bus- 
ketf,  754. 

3.  Exemption  fro:j  self-cbimination.— Rule  as  to.    Note  p.  700. 


ITS. 

COUUT.     Note,  p.  753. 


ion  of  Const.,  nrt.  2, 
y  iiKniast  liiniHelf  in  a 
1  tlisi'loninK  tlio  nnnios 
in  inn.  HJnce  immunity 
irovidostlint  no  persoii 
oifonse  committed  i)y 
having;  played  at  any 
^liich  may  be  );ivfn  by 
lim."   Ejc  imrte  Bus- 

Note  p.  700. 


